R. v. Savard, 2013 ONSC 2208

CITATION: R. v. Savard, 2013 ONSC 2208 COURT FILE NO.: 72/10 and 85/10 DATE: 20130412 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN - and - JOSEPH SAVARD ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) David A. Mitchell , for the Crown David Midanik , for the accused ) ) HEARD: March 19, 2013 Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. K.L. Campbell J.: I Overview

[ 1 ] The accused, Joseph Savard, was charged with three counts of criminal harassment in relation to his activities and correspondence with three young women. He was tried by the Honourable Madam Justice M. Lane of the Ontario Court of Justice. [ 2 ] The evidence revealed that the accused, a 52-year-old man at the time of the alleged offences, repeatedly communicated with the three young female complainants, namely, 16-year-old N.F, 16-year-old T.C., and P.K., who was in her early twenties, during the course of each of their respective employments. N.F. and T.C. worked as cashiers at a Loblaws store.

P.K. worked as a teller and customer service representative with the Canadian Imperial Bank of Commerce (C.I.B.C.). The accused met them while doing his banking and buying his groceries. None of the complainants were interested in any type of relationship with the accused, but he pursued them at every opportunity. Indeed, he frequently manufactured opportunities to talk to them and compliment them.

While this unreciprocated attention made all three of the complainants uncomfortable, P.K. was the only one who told the accused, in October of 2007, in clear terms, that he was never to contact her again. [ 3 ] Ultimately, after obsessing over N.F. and T.C. for a number of months, in June of 2008, the accused wrote a detailed “love- letter” to T.C. in which he clearly expressed his sexual interest in her and N.F.

T.C. immediately went to the police and the accused was arrested and charged with the criminal harassment of T.C. [ 4 ] Shortly thereafter, in July of 2008, the accused wrote a lengthy, rambling letter to P.K. that, amongst other things, sought her testimonial assistance in dealing with this charge. In this letter, the accused also confessed his long-standing sexual interest in P.K. and impliedly threatened that the parents of N.F. would never see their daughter again.

P.K. immediately went to the police and the accused was charged with two further counts of criminal harassment in relation to P.K. and N.F. [ 5 ] On February 5, 2010, at the conclusion of the trial proceedings, the trial judge delivered her Reasons for Judgment , finding the accused guilty of all three offences. Sentence was imposed by the trial judge on April 30, 2010. By that time, the accused had served some 17 months in pre-sentence custody. In the result, the trial judge suspended the passing of sentence and placed the accused on probation for three years.

The probation order included terms prohibiting the accused from having any contact or communication with the three complainants, or entering any Loblaws or C.I.B.C. branch in Ontario. [ 6 ] The accused appeals against his conviction. The accused contends that the verdicts reached by the trial judge are unreasonable, and that the evidence does not establish the offences of criminal harassment. [1] [ 7 ] The Crown appeals against the sentence imposed upon the accused.

The Crown contends that the trial judge erred in failing to impose the mandatory weapons prohibition order required by s. 109 of the Criminal Code , R.S.C. 1985, chap. C-46, and erred in refusing to make the requested DNA Databank order pursuant to s. 487.051(3) of the Code . II The Factual Background 1. The Initial Communications with P.K. in the Bank (2003-2006) [ 8 ] The accused first met P.K., the bank teller, in 2001. The accused came into the bank frequently and conducted his banking with P.K.

When P.K. moved to another branch of the bank, so did the accused. [ 9 ] Between 2003 and 2006, the accused saw P.K. at the bank about three times a week. After P.K. changed bank branches, the accused became more personal in their conversations. The accused would frequently ask her out and tell her how much he missed her and loved her. P.K. was not interested in the accused and never encouraged this attention. These comments were “not normal” and always made her uncomfortable. At first she tried to just laugh off his comments.

She realized that the accused “wasn’t mentally there,” and that he “needs help,” but she did not want to treat him “any different.” P.K. explained that the accused had a long beard and would come to the bank in the middle of the winter dressed in shorts, a t-shirt, ripped socks and slippers. She felt that “[n]o one in their right mind” would dress in that way. He kept his wallet down the front of his pants. [ 10 ] This conduct by the accused became very repetitive and annoying. It made her feel uncomfortable. If she saw him coming into the bank, she would hide in the back offices to avoid him.

Everyone at the bank knew the accused and, at her request, they would lie to him as to her whereabouts. P.K. told him that she was married and was “expecting” in order to try to get him to stop making these comments to her. The accused did not care and continued with his comments. On one occasion, P.K. had to raise her voice because the accused refused to leave her office in the bank. [ 11 ] When P.K. took a promotion to the head office location of the bank in July of 2006, the accused wondered how they would stay in contact, but P.K. told him that they were not going stay in contact.

P.K. did not see the accused for approximately the next 15 months. 2. The Initial Communications with N.F. in the Grocery Store (2006-2007) [ 12 ] N.F. worked as a cashier at a Loblaws store in Toronto. N.F. began working there part-time on weekends in 2006 when she was 16 years old. [ 13 ] Between November of 2006 and March of 2007, N.F. saw the accused frequently when he came in for groceries. He always came through her check-out line.

He would stare at her, tell her that she was “very beautiful,” and that she had a “nice smile.” If she had a day off, the accused would say that he “missed her.” At first, N.F. thought nothing of these comments, but as they continued the “constant comments” made her uncomfortable. While N.F. did not want the accused to talk to her this way, she did not say anything to

him as she did not want to confront him. The accused “scared [her] in a way.” There were a couple of occasions where the accused spent the entire day in the Loblaws store browsing around. [ 14 ] Between March and September of 2007, N.F. had her hours cut and she rarely worked. N.F.’s hours were increased in September of 2007, and again she began to have regular contact with the accused. In the fall of 2007, N.F. started to invite other cashiers over to bag groceries whenever she dealt with the accused because she thought he was “creepy.” His comments to her continued, so she tried to ignore him. 3.

The Telephone Call to P.K at the Bank’s Head Office (October 2007) [ 15 ] In October of 2007, the accused contacted P.K. by phone at work. The accused asked her why she had been so “cold” to him, as if she did not want to speak with him. He told her that he loved her. P.K. told the accused never to contact her again and that she did not want to have anything to do with him. She wanted to know how he got her direct phone line and, eventually, the accused told her that he got the number through the corporate switchboard.

She told him she had to go, but the accused persistently repeated that he missed her and loved her. He wanted to see her and take her out. The call made P.K. feel uncomfortable and she complained to her work supervisor, who had the accused “blocked” from calling through the corporate switchboard. 4. The Communications with T.C. (November 2007-June 2008) [ 16 ] In the fall of 2007, T.C. began to work in the same Loblaws store as a cashier. She began dealing with the accused in November of 2007 and their interactions increased over time until approximately June of 2008.

She worked on weekends and a number of days during the week and she saw the accused frequently. [ 17 ] T.C. saw the accused almost every time that she worked. The accused was always dressed the same, in shorts and “flip-flop” sandals. He always had a long beard. Sometimes in the winter, he would wear a woman’s full-length fur coat. The accused would stay in the store for long periods of time, and he would always come through her cashier line. Sometimes he would not buy anything, but just ask her to make change for him.

At first, this seemed odd but did not cause her to feel threatened enough to go to the store security. [ 18 ] After N.F. left the Loblaws store in February of 2008, the accused focused his attentions on T.C. The accused asked her about N.F., said that he missed her, and said that N.F. and T.C. were the prettiest girls in the store.

These conversations made T.C. feel uncomfortable as the accused was a 50-year-old man and he was making these comments about 16 or 17-year-old girls. [ 19 ] The accused always came through her cashier line, even if he had to wait behind other customers, while other cashier lines were empty. The accused would buy some items and circle around through the store again and buy more items, each time, “over and over again” coming through T.C.’s cashier line.

On any given shift, the accused would come through T.C.’s cashier line “probably four times, at least.” Sometimes he would just “hang out” and look at the magazines in the rack in her line for 20 minutes at a time. [ 20 ] T.C. never told the accused to “just leave” as she did not feel she could say anything considering he was not damaging the store, but the accused did make her feel uncomfortable.

The behaviour of the accused was not something that “a right-minded person would do.” T.C. thought that the accused was not “stable minded,” and she was unsure what he might do if she talked to him about his behaviour. 5. The Accused’s “Love Letter” to T.C. (June 2008) [ 21 ] In mid-June of 2008, the accused left a letter for T.C. at the Loblaws store. The store manager passed it along to T.C. on June 27, 2008. The letter was four pages long and hand-written by the accused.

As summarized by the investigating police officer, it appeared to be a “love letter” that disclosed the accused’s obsession for both T.C. and N.F. He talked about them both in the letter. [ 22 ] In this letter, the accused explained how he had told N.F. that she was “beautiful” and “very sexy,” and that he had come to feel the same way about T.C. The accused described their similar physical appearance, including their “sexy bodies, and beautiful round breasts.” He suggested that T.C. had made “sexy eyes” at him. He professed his love for both young women and indicated that he could never choose between them.

The accused discussed, at some length, their hair styles, and indicated to T.C. that her hair always “sexually arouses” him. He indicated that he was “very, very sexually attracted to both” of the young complainants, but recognizing the difference in their ages, he said that a sexual relationship was not a precondition to friendship and it was T.C.’s decision. [ 23 ] Reading this letter from the accused made T.C. feel very uncomfortable. She thought that it was “not appropriate” for an older man to be saying such things to someone her age.

The letter “really scared” her and she and her parents called the police. [ 24 ] Subsequently, T.C. showed this letter to N.F. It made her feel “terrible” and “really uncomfortable.” She began to worry about her safety. She thought the accused was “creepy and weird.” She had stopped working in the Loblaws store in February of 2008 and yet the letter showed that the accused was still thinking about her. 6. The Arrest of the Accused for the Criminal Harassment of T.C. (July 7, 2008) [ 25 ] On July 7, 2008, the police attended at the accused’s residence and arrested him for the alleged criminal harassment of T.C. 7.

The Accused’s Handwritten Letter to P.K (July 15, 2008) [ 26 ] In July of 2008, P.K. heard from the manager of her old bank branch that the accused was looking for her, had a package for her, and wanted her to be a witness. Shortly thereafter, around July 15, 2008, the accused showed up at the head office location, somehow managed to gain access to an employee-only reception area, and left an envelope addressed to P.K., which contained a 14 page hand-written letter from the accused.

Attached to the letter was a photocopy of a five-page “Record of Arrest,” providing a synopsis of the alleged criminal harassment of T.C.

[27] The investigating officer summarized this letter as “very disturbing.” It essentially expressed his anger with T.C. forreporting his letter to the police and it tried to enlist the assistance of P.K. and N.F. P.K. recognized the hand-writing and signature ofthe accused. Reading the contents of this letter caused P.K. to become “disturbed” and she felt “not safe,” as it referred to parts of herbody, impliedly threatened another unknown individual (N.F.) and herself, and she did not know what the accused was “capable of”doing. She felt “threatened” and feared for her safety.

P.K. immediately spoke to her manager, another senior manager, and then thedirector of the office. They immediately went to the police. P.K. explained that she felt that her safety may have been in jeopardy. [28] On July 16, 2008, when N.F. returned to Canada after a vacation, she was shown a photocopy of the letter the accused wroteto P.K. She noticed that, in this letter, the accused talked about her (N.F.), and suggested that her parents might never be able to see heragain if they did not “take his side” in court.

When N.F. saw this portion of the letter from the accused, it was the “worst feelingpossible,” as the accused was “kind of threatening” her. N.F. started crying. N.F. took the letter seriously and was concerned that theaccused would take her away from her parents. Seeing the contents of this letter, N.F. became “afraid” and “really scared” of theaccused. III The Conviction Appeal 1. The Three Charges [29] The accused was charged with, and convicted of, three counts of criminal harassment.

It was alleged that the accused: (1)criminally harassed P.K. between September 1, 2001 and July 15, 2008, by repeatedly communicating with her; (2) criminally harassedN.F. between November 1, 2006 and February 1, 2008, by engaging in threatening conduct directed at her; and (3) criminally harassedT.C. between February 1 and June 1, 2008, by repeatedly communicating with her. Each count alleged that the conduct of the accusedcaused the complainant to reasonably fear for her safety. 2. The Elements of the Offence of Criminal Harassment [30]

Section 264 of the Criminal Code, which creates the offence of criminal harassment, provides as follows: 264.

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the otherperson is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, tofear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries onbusiness or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. [31] It is immediately apparent from s. 264(2) that the actus reus of the offence of criminal harassment may be committed in fourdifferent ways, namely: (1) by repeatedly following someone from place to place; (2) by repeatedly communicating with someone; (3)by watching or besetting the residence or workplace of someone; or (4) by engaging in threatening conduct directed at someone or his orher family.

While some types of alleged criminal harassment must be engaged in by the accused “repeatedly,” acts by the accused whichamount to “besetting or watching” the residence or workplace of another person, or “engaging in threatening conduct directed at anotherperson or any member of their family” need not be undertaken by the accused “repeatedly” to constitute the actus reus of the offence. [32] The law is settled that in addition to proving that an accused engaged in the conduct prohibited by s. 264(2) of the CriminalCode, the Crown must also establish: (1) that the conduct of the accused was without lawful authority; (2) that the complainant was infact harassed by the actions of the accused; (3) that the accused knew that the complainant was harassed by his or her conduct, or wasreckless or willfully blind in relation to whether the complainant was harassed; (4) the conduct of the accused caused the complainant tofear for his or her safety; and (5) the complainant’s fear for his or her safety was reasonable in all of the circumstances.

See: R. v.Kordrostami (2000), (ON CA), 143 C.C.C. (3d) 488 (Ont.C.A.); R. v. Krushel (2000), (ON CA),142 C.C.C. (3d) 1 (Ont.C.A.); R. v. Ohenhen (2005), (ON CA), 200 C.C.C. (3d) 309 (Ont.C.A.); Leave denied:[2006] S.C.C.A. No. 119; R. v. Seaton, 2012 ONSC 6070, [2012] O.J. No. 5122, at para. 69; R. v. Sillipp, 1997 ABCA 346, 120 C.C.C.(3d) 384, at paras. 18-19, 38-39; Leave denied: [1998] S.C.C.A. No. 3. 3. The Conviction Appeal Regarding T.C (Repeated Communications) a. Introduction [33] The accused advances two arguments in relation to the appeal against the conviction for criminal harassment concerning T.C.

First, the accused contends that the trial judge erred in admitting the comment spontaneously made by the accused upon his arrest. Second, the accused contends that the trial judge erred in failing to consider the exculpatory aspects of the letters written by the accusedon the issue of whether the accused had the necessary mens rea for the offence. Indeed, the accused argues that these letters reveal thatthe accused did not subjectively appreciate that his communications with T.C. were not welcomed by the complainant, and that theydemonstrate that any conviction of the accused would be unreasonable.

b. The Spontaneous Utterance on Arrest 1. The Relevant Facts [34] When the police attended at the residence of the accused on July 7, 2008, the accused was advised that he was “under arrestfor criminal harassment.” Almost immediately, the accused said: “Is this in relation to the letter I sent to [T.C.]?” The police replied inthe affirmative. [35] At trial, the Crown tendered the evidence of this statement by the accused to help establish that the accused knew that hisrecent “love letter” to T.C. was problematic as it would likely cause her to feel harassed.

While the accused was represented through partof the trial, at the time the Crown sought to tender this statement, the accused was unrepresented. Accordingly, a voir dire wasconducted in order to determine the admissibility of the statement. In the result, the trial judge held that the “spontaneous utterance” ofthe accused was voluntary and admissible.

While it was uttered at a time prior to the police advising the accused of his right to counsel,at that point, the accused had not actually been taken into physical custody. [36] Moreover, in her Reasons for Judgment, the trial judge relied upon this utterance as evidence that the accused knew that hisletter to T.C. would cause her to feel harassed. More particularly, Lane J. stated: I also accept that Mr. Savard knew that in writing this letter, [T.C.] was likely to be alarmed by its contents, given the sexually explicitnature of the passions he expressed and the age difference between them.

That his question to Officer MacPhail ruled [admissible] after a voir dire as a spontaneous utterance, asking if his arrest was in relation tothe letter he had written to [T.C.], clearly, he indicates that he was aware that the contents of the letter were problematic and could causeher to feel harassed. 2. The Defence Argument on Appeal [37] Defence counsel, on appeal, contends that this statement by the accused is not admissible. He does not challenge thevoluntariness of the utterance, but rather argues that since an accused that is placed under arrest is entitled, according to s. 10(

a) of theCanadian Charter of Rights and Freedoms, to be advised of the reasons for his or her arrest, any comment or inquiry by the accusedregarding the reasons for the arrest is “protected speech” and therefore inadmissible. 3. Analysis [38] There is no question that s. 10(

a) of the Charter constitutionally enshrines the right of individuals to be promptly informed ofthe general reasons for their arrest or detention. The reasons do not need to be expressed in technical or precise language and need notcontain all of the legal details that might be seen in an information or indictment, but the police must advise the accused, in clear andsimple terms, and in substance, of the reasons for his or her arrest or detention. See: R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541,at paras. 16-22; R. v. Kelly (1985), (ON CA), 17 C.C.C. (3d) 419 (Ont.C.A.) at p. 424; R. v.

Evans, (SCC), [1991] 1 S.C.R. 869, at pp. 886-888; R. v. Latimer, (SCC), [1997] 1 S.C.R. 217, at paras. 28-31 R. v. Mann,2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21; R. v. Clarke, 2012 ONSC 1485, [2012] O.J. No. 1120, at para. 39-43; R. v. Peterkin, 2013ONSC 165, [2013] O.J. No. 195, at paras. 96, 100-102; R. v. Ellis, 2013 ONSC 1494, [2013] O.J. No. 1274, at paras. 65-66. [39]

Section 10(

a) of the Charter does not, however, operate to constitutionally insulate an accused from the evidentiary use ofanything he or she may spontaneously say to the police before the police are able to completely fulfill their obligations under s. 10(

a) ofthe Charter. Provided that the police, on the arrest or detention of an individual, advise the person of the reasons for his or her arrest ordetention “promptly,” there is no violation of s. 10(

a) of the Charter. [40] In my view, there was no violation of s. 10(

a) of the Charter in the circumstances of the present case. According to thetestimony of Det. Cst. MacPhail, when he and Det. Cst. Peters arrived at the residence of the accused and spoke to the accused at hisdoorway, the accused was advised that he was “under arrest for criminal harassment.” Det. Cst. MacPhail testified that, “almostimmediately” [emphasis added] the accused said: “Is this in relation to the letter I sent to [T.C.]?” In other words, before the police couldcomplete their obligations under s. 10(

a) of the Charter by detailing, more specifically, the nature of the criminal harassment, theaccused interrupted them with his inquiry about whether the alleged criminal harassment was in relation to the letter he had recently sentto T.C. The police then promptly completed their obligations under s. 10(

a) of the Charter by replying in the affirmative to the accused’sinquiry. [41] I note in passing that neither the accused, nor the amicus counsel, raised any suggestion at trial as to any potential violation ofs. 10(

a) of the Charter. The only issue for the trial judge was whether the utterance by the accused was voluntary, and Lane J.concluded that the utterance was, indeed, voluntary. [42] Defence counsel fairly and candidly acknowledges that he knows of no authority directly in support of his argument that s.10(

a) of the Charter provided a temporal period of “protected speech” surrounding the arrest of an accused wherein comments,utterances and questions were rendered inadmissible if they related to the reasons for the arrest. He submitted, however, that thisargument was analogous, in principle, to the general rule surrounding the exercise of the right to remain silent. He relied upon theSupreme Court of Canada decision in R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, in this regard. [43] In my view, the decision in R. v.

Turcotte does not impact the analysis of the admissibility of the utterance of the accused inthis case. The decision in R. v. Turcotte held that the silence of an accused, in response to questions posed by the police in the course ofan investigation, cannot normally be relied upon by the Crown as post-offence conduct from which an inference of guilt may be drawn.

Abella J., delivering the judgment of the court, at paras. 44-47, confirmed that, as a general rule, it would be a “snare and a delusion” toallow an exercise of the right to remain silent, whether after a standard police caution or not, as evidence of guilt. Accordingly, evidence

of the silence of the accused is only admissible in certain limited circumstances. See also: R. v. Chambers, (SCC),[1990] 2 S.C.R. 1293. [44] The admission of the spontaneous utterance by the accused in the present case does not compromise either the theoreticalspirit or the practical operation of the general rule discussed in R. v. Turcotte. The accused in the present case undoubtedly had the rightto remain silent when he was being placed under arrest, and could easily have exercised it.

Instead of remaining silent, however, theaccused elected to offer the arresting officers, by way of his question, his best guess as to the likely reason for his arrest. Moreover,neither the Crown nor the trial judge relied upon any silence on the part of the accused to draw any inference adverse to the accused.

The evidence that was admitted and relied upon by the trial judge was the positive utterance that the accused elected to make to thepolice while they were in the process of placing him under arrest at his residence and advising him of the reasons for that arrest. [45] Said another way, in my view the circumstances of the present case are not analogous to those in R. v. Turcotte. In R. v.Turcotte, the Supreme Court concluded that the accused’s right to remain silent would be diminished if the Crown was entitled to use thepractical exercise of that right against the accused as evidence.

In contrast, in this case the accused’s right to be informed promptly ofthe reasons for his arrest is not diminished by permitting the Crown to tender a spontaneous utterance he made during the course of thearrest process before the police were able to fully comply with their obligations under s. 10(

a) of the Charter. 4. Conclusion [46] Accordingly, the trial judge did not err in admitting the spontaneous utterance of the accused during the course of his arrestby the police. [47] I note in passing that once the evidence of the utterance was admitted, it was for the trial judge to draw the appropriate factualinference, in all the circumstances, as to the significance of this piece of evidence.

The inference drawn by Lane J., that this spontaneousutterance revealed that the accused was aware that the contents of his letter to T.C. were problematic and could cause T.C. to feelharassed, was a perfectly reasonable inference to draw from that evidence. The accused does not suggest otherwise. c. The Contents of the Letters From the Accused 1.

The Factual Conclusions of the Trial Judge [48] In considering whether the Crown had established the alleged guilt of the accused in relation to the charge that he criminallyharassed T.C., the trial judge carefully reviewed, at some length, all of the relevant evidence in her Reasons for Judgment.

Moreparticularly, Lane J. reviewed the key aspects of the testimony of T.C., and the details of the letter that the accused wrote to T.C. in Juneof 2008. [49] After her full and accurate review of the evidence, the trial judge concluded that, on her “finding of the facts,” the letter fromthe accused was “the culmination of the repeated communications” the accused had with T.C. “over several months.” The trial judgealso observed that the evidence “clearly shows his intention to continue communications with her.” The trial judge found that the failureof T.C. to complain to the accused about his behaviour did not amount to consent or acquiescence on her part.

Rather, it was simply thereaction of a “very young woman who did not know how to handle the situation.” [50] On the issue of the mens rea of the accused, the trial judge drew the following factual conclusions during the course of herlengthy Reasons for Judgment: I accept that Mr.

Savard knew that in writing this letter, [T.C.] was likely to be alarmed by its contents, given the sexually explicit natureof the passions he expressed and the age difference between them. * * * * * … [the utterance by the accused to the police upon arrest] indicates that he was aware that the contents of the letter were problematicand could cause her to feel harassed. * * * * * Although he wrote only one letter to [T.C.], it was the culmination of his repeated communications with her over several months. I findthat he knew or was reckless as to whether she would be harassed by the letter.

Clearly, she was alarmed for her safety, and given thecontents of the letter, it was reasonable for her to have that fear. [emphasis added] 2. Analysis [51] In my view, the conclusions reached by the trial judge are perfectly reasonable and display no error of fact or law. The trialjudge considered the relevant evidence, drew reasonable factual inferences from the evidence, and reached a reasonable verdict that issupported by the evidence.

I simply see no proper legal basis upon which to interfere with the conclusion reached by the trial judge inrelation to this charge. [52] There are, no doubt, aspects of the letter written to T.C. which suggest that the accused might have optimistically thought thatT.C. was interested in him.

For example, in the letter, the accused suggests that, when they first met, T.C. “made big, soft, sexy eyes” athim, and “seemed to like [him] and want to be [his] friend.” The accused also suggests, in the letter, that there are times when T.C. looksat him that reveal that she likes him “very much too.” The trial judge expressly quoted and considered these portions of the letter. These

portions of the letter do not dictate the acquittal of the accused. Rather, they constitute just a small portion of the entirety of the evidencethat the trial judge was obliged to consider – and clearly did consider.

As I have indicated, in my view, the trial judge was entitled toconclude, based upon all of the evidence, that the accused was at least subjectively reckless as to whether or not T.C. would be harassedby his entire course of conduct and culminating in the letter that he provided to her. [53] In this regard it is important to accurately recall the legal scope and operation of “recklessness” as part of the general mens reaof criminal offences. The Supreme Court of Canada explored the detailed nuances of the traditional view of recklessness in R. v.Sansregret, (SCC), [1985] 1 S.C.R. 570.

The accused in that case was charged with rape and the issue centered on theaccused’s claim that he was honestly mistaken as to the complainant's consent to the sexual activity that took place between them. McIntyre J., delivering the judgment of the unanimous court, confirmed that the mens rea of rape was knowledge that the woman wasnot consenting, or recklessness as to whether she was consenting or not, and made the following observations about recklessness, at pp.581-582: The concept of recklessness as a basis for criminal liability has been the subject of much discussion.

Negligence, the failure to takereasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by

an act oromission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminalpenalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of thecriminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that hisconduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, theconduct of one who sees the risk and who takes the chance.

It is in this sense that the term “recklessness” is used in the criminal law andit is clearly distinct from the concept of civil negligence. [emphasis added] [54] Accordingly, the traditional formulation of the concept of recklessness is described as a subjective form of mens rea that issomewhat less culpable than actual intention or knowledge. It is described as an accused who knows that his or her conduct runs the riskof producing a prohibited result, but proceeds in any event.

While the accused may not necessarily want to produce that prohibitedresult, the accused has, nevertheless recognized the risk inherent in his or her conduct and has proceeded in the face of that risk. Anaccused is reckless where he or she recognizes that his or her conduct could bring about the prohibited result or consequences, even ifnot convinced that it would produce the prohibited harm or consequence. See also: R. v. Zlatic, (SCC), [1993] 2 S.C.R.29, at pp. 49-50; R. v. Théroux, (SCC), [1993] 2 S.C.R. 5, at pp. 20-21; R. v.

Briscoe, 2010 SCC 13; [2010] 1 S.C.R.411, at para. 21-23. [55] In the present case, the accused might well have hoped, within the confines of some unrealistic fantasy life, that T.C. might beinterested in him romantically. But based on the evidence, he subjectively realized the real risk that T.C. might not be interested in him,and that his repetitive and obsessive conduct toward her over a period of months, in addition to his sexually explicit letter to her, couldcause her to feel harassed and reasonably fear for her safety.

In other words, subjectively appreciating this clear risk inherent in hiscourse of conduct, the accused persisted in his conduct in the face of that risk, recognizing it could cause the complainant to feelharassed. By concluding, as a matter of fact, that the accused possessed at least the mens rea of recklessness, the trial judge, in effect,drew these conclusions in reaching her verdict.

As I have indicted, in my view, this was a perfectly reasonable analysis of the evidenceof this case. [56] In reaching her conclusions in relation to this count, the trial judge did not expressly consider the potential significance of theletter that the accused subsequently sent to P.K in mid-July of 2008. This is not surprising given the manner in which the trial unfolded. Nor does it reflect any error on the part of the trial judge. [57] First, at trial, the accused did not suggest that this letter in any way assisted him in his defence.

Indeed, he argued, at somelength, that this letter had been altered and was not genuine, and that P.K. had the motive and opportunity to alter the letter.

At trial, itwas the Crown who sought to rely on portions of this letter to show that the accused subjectively appreciated the risk that T.C. would beharassed by his conduct. [58] Second, given the timing of this letter (i.e. written after the arrest of the accused in relation to the charge involving T.C.), andthe fact that one of its apparent purposes was to secure the evidentiary assistance of P.K., the trial judge was entitled to view theaccused’s comments in his letter to P.K. about his relationship with T.C. as manufactured and self-serving, and therefore, entitled to littleweight. [59] Finally, and in any event, there is nothing in the letter to P.K. that was so significant on the issue of the mens rea of theaccused that the trial judge was obliged to expressly consider it, or which rendered the conviction of the accused on this countunreasonable.

Indeed, as the Crown argued at trial, there are portions of the letter which support the conclusion of the trial judge that theaccused was at least reckless in relation to whether T.C. was harassed by his conduct. 4. The Conviction Appeal Regarding P.K. (Repeated Communications) a.

Introduction [60] With respect to the charge regarding P.K., the trial judge concluded, after reviewing all of the relevant evidence, that this wasa “classic case of criminal harassment by repeated communications.” In reaching this conclusion, the trial judge relied upon the fact thatafter an extended period of repetitive comments that made the complainant uncomfortable, the complainant made it clear to the accusedthat “there would be no further contact between them,” and yet the accused, in July of 2008, “totally ignored her admonition” anddelivered a “rambling” 14 page letter to her work.

The trial judge noted that, in this letter, the accused vowed his love for P.K, and

expressed his frustration with other young women who were totally unknown to P.K., one of whom had apparently complained to the police. The trial judge observed that on an objective analysis, any reasonable person would be “alarmed by the tone of this letter,” especially given the expectations the accused expressed and his “obsessive and sexually explicit preoccupation” with the other women. The trial judge stated that it was “perfectly reasonable” for P.K. to be fearful of her safety and the safety of the other two young women.

The trial judge concluded that P.K. was “clearly harassed” by the conduct of the accused, and the accused knew or was reckless as to whether she would have been harassed by his conduct. [ 61 ] On the evidence that was before the trial judge, these reasonable conclusions are unassailable. The accused does not contend otherwise. [ 62 ] On appeal, the accused challenges, for the first time, the admissibility of the letter provided to P.K in July of 2008. In advancing this argument, defence counsel observes that the case against the accused in relation to P.K. centered on this letter.

Their earlier communications took place years earlier. It was only the letter that brought the police. Defence counsel argues that the letter was not admissible as it was “protected speech.” The accused was lawfully entitled to send that letter, he argues, because he was trying to convince P.K. to testify on his behalf. As the letter was sent in the context of the accused trying to make “full answer and defence,” his right to communicate with a potential witness trumped the complainant’s interest in being left alone. I reject this argument. b.

Analysis [ 63 ] There is no doubt that P.K. could lawfully have been subpoenaed in order to give evidence. I am also prepared to assume, without deciding, that the accused, who was unrepresented by counsel at the time he delivered the letter, could have communicated with P.K. about her potential evidence.

However, the mere fact that the accused might have been able to engage in some narrowly limited and circumscribed communications with P.K. in an effort to arrange her testimony, did not provide him with carte blanche as to the substance of his communications with P.K., especially given that she had earlier made it abundantly clear to the accused that she wanted nothing to do with him and that he should stop contacting her.

In other words, his status as an accused preparing his defence did not automatically cloak his communications with any potential witnesses with a protective privilege that prevented their use as evidence. [ 64 ] I am not aware of any authority that supports the broad “protected speech” rule of evidence advanced on behalf of the accused on this appeal.

Indeed, as a matter of principle, statements made by accused persons to others not in positions of authority are generally admissible against an accused, when tendered by the Crown, as they are viewed as “admissions” – one of the traditionally recognized exceptions to the rule against hearsay. [ 65 ] While not addressing any rule of evidence, the opening words of s. 264(1) of the Criminal Code make it clear that the offence of criminal harassment is committed only if the accused acted “without lawful authority.” In other words, if the accused engaged in the acts of alleged criminal harassment with “lawful authority,” an essential element of the offence is missing.

Moreover, the burden is on the Crown to prove beyond a reasonable doubt that the accused acted “without lawful authority” in engaging in the conduct that is alleged to amount to criminal harassment. [ 66 ] Importantly, the authorities are clear that where the Crown relies upon some correspondence from an accused to help prove the offence of criminal harassment, the fact that some aspect of the correspondence may have been undertaken with lawful authority does not provide the accused with a defence to the charge if some other aspect of the communication constitutes criminal harassment and is made without lawful authority.

In other words, the existence of some limited lawful authority with respect to part of the communication does not provide a defence to the charge of criminal harassment. See: R. v. B.(P.R.) , 1999 ABPC 158 , [1999] A.J. No. 1589; R. v. Milani , 2007 ONCJ 394 , [2007] O.J. No. 3357. This point is clearly made by Durno J. in R. v. Vandoodewaard , [2009] O.J.

No. 5099 (S.C.J.) at para. 84 : If the elements of the offence [of criminal harassment] are established, whether the predominant theme [of a communication] is harassment or pursuant to a lawful authority, if the elements are established as long as some or part of the conduct amounts to harassment , it is not necessary to establish that the predominant purpose is harassment. For example, a lengthy communication could deal with issues covered under lawful authority .

However, if the communication included threatening conduct directed at the other person or member of their family (s. 164(2)(d)), provided the other elements of the offence were established it matters not that the predominant theme was pursuant to lawful authority . [emphasis added] [ 67 ] In the present case, even assuming that some aspects of the accused’s letter to P.K. were pursuant to some lawful authority, there can be no question that the majority of the letter was written entirely without any lawful authority.

Indeed, at trial, there was no suggestion that any aspect of the letter was authored pursuant to any lawful authority. A few obvious examples of comments from the letter, none of which could have been pursuant to any lawful authority, will suffice to illustrate this point: • The accused told P.K.: “I love you very much.

I always will.” He said that she was one of the girls who “captured [his] heart.” The accused described P.K. as “incredibly beautiful.” The accused repeatedly expressed his love for P.K. • The accused told P.K. that he knew her “present location.” • The accused described how P.K., and the other girls at the bank, liked him “very much,” considered him “absolutely gorgeous,” and regarded him as “desireable” and “special” despite his age. • The accused told P.K. that he cannot be “obsessed” with the two other complainants, as alleged by the police, because most of the time he spends “lusting after women” is spent lusting after P.K. • The accused told P.K, “for the sake of argument, and to help prove [his] case,” that P.K. has “beautiful, round breasts,” that he

was “sexually attracted” to her, and asked her to “have sex” with him.

The accused indicated that this was “even more sexually explicit” than he had been in his correspondence with one of the other complainants. • The accused told P.K. that he “loved [her] very much” and so obviously he felt towards her “sexually” as he had “described.” The accused indicated that he would “love to send [her] a love letter describing this more … but time and space do not presently permit this.” The accused then suggested that P.K. would not consider such comments “harassment,” but just the comments of a “devoted friend who loves [her] very much,” and as a “show of affection.” • The accused suggested that “if a man tells a normal sixteen year old girl she has beautiful breasts, and sends her a love letter, she says thank you, and does not call the police.” • The accused told P.K. about an “offer” he was prepared to make to another complainant, N.F., whereby he would agree to lavish her with “beautiful, expensive merchandise,” such as fur coats, if she would end her relationship with T.C., and her own immediate family.

The accused indicated that if the parents of N.F. would not agree to his conditions, “they will never see their daughter [N.F.] again.” He also indicated that N.F. “should stay out of Canada until [his] case is fully resolved.” [ 68 ] As P.K. testified, even if the accused wanted to ask her to testify on his behalf, he only had to write a “brief letter” making that request and he did not have to include “all that” detail in his letter. She was obviously correct in making that observation. Accordingly, there is simply no basis upon which to interfere with the verdict reached by the trial judge in relation to P.K.

The verdict is perfectly reasonable, it was not based upon any inadmissible evidence, and the aspects of the accused’s letter to P.K. that are alleged to constitute criminal harassment were without any lawful authority. 5. The Conviction Appeal Regarding N.F. (Threatening Conduct) a. Introduction [ 69 ] The accused was convicted of the criminal harassment of N.F., by engaging in threatening conduct directed at her.

More particularly, the accused was convicted on a charge that alleged, that sometime between November 1, 2006 and February 1, 2008, in Toronto, knowing that N.F. was harassed or being reckless as to whether N.F. was harassed, he did “engage in threatening conduct directed at” N.F., thereby causing her to reasonably fear for her safety. [ 70 ] Defence counsel argues that there are two problems with the conviction of the accused on this charge given that the only evidence before the trial judge of any potentially “threatening conduct” on the part of the accused, on the Crown’s own theory of liability, is found in the letter he sent to P.K. in July of 2008.

First, as a technical matter, the letter to P.K. was not drafted until nearly six months after the latest date alleged in the information. In other words, the Crown failed to establish that the accused engaged in any threatening conduct during the time period alleged. Second, defence counsel argues that the allegedly threatening conduct in the letter the accused provided to P.K. was not “directed at” the complainant N.F. He contends that it does not amount to threatening conduct at all. In essence, defence counsel challenges the reasonableness of the verdict reached by the trial judge in relation to this count.

The accused argues that, in the result, his conviction for this charge must be set aside and an acquittal entered. [ 71 ] The Crown argues that the statements contained in the accused’s letter to P.K. in July of 2008 do, indeed, amount to “threatening conduct” on the part of the accused, and it was directed, at least in part, at N.F. as the trial judge concluded, and that the verdict reached by the trial judge in this regard is a reasonable one.

With respect to the technical argument advanced by the accused in relation to the time period outlined in the information, the Crown seeks an amendment of the time period so as to extend it to include the letter, observing that this was the Crown’s theory of liability from the very outset and, accordingly, the accused would not be prejudiced by such an amendment. b. The Evidence of Threatening Conduct Directed at N.F. – The Letter to P.K. [ 72 ] At the time he wrote his 14 page letter to P.K. in July of 2008, the accused had been arrested and charged with the criminal harassment of T.C.

The police had not yet interviewed N.F., who was out of the country on a vacation.

In that context, the accused made all of the following statements in his July 2008 letter to P.K, which are alleged to cumulatively constitute the threatening conduct directed at N.F.: • I am obviously very much concerned for the life and safety of [N.F.], who I want to stay out of Canada for a very long time, until my case is resolved. • I am very concerned about [N.F.] especially about the way that her friendship … with [T.C.] may result in [N.F.] being manipulated, suckered, taken advantage of, otherwise victimized, and subtly mentally twisted, by [T.C].

I am also very concerned that if [N.F.’s] parents turn against me …, without even knowing me, they would also be a very detrimental influence upon her, obviously.

While there is presently no restriction on my contacting [N.F.], I am hesitant to ask my friends to do this, because I do not want to give police the impression of trying to harass or manipulate [N.F.] for evidentiary purposes. (Nevertheless I may be forced to do so before police manipulate her against me and get restrictions against my seeing her.) Regardless of the time frame, after ethical and practical restrictions are worked out, I want to ask you and some of the other girls from the two bank branches where you once worked, who liked me, to in due course, become friends with [N.F.] , who I think you will really like, to replace [T.C.], and, if they go against me, the parents of both [T.C.] and [N.F.] will then obviously require a new family to care for her, and enough of you girls who liked me can do so very well. • [P.K.], I will now tell you what I want to do to help show [N.F.] that I do care for her sincerely, which will help prove my innocence … I am willing to offer as a surety guarantee to [N.F.] an enormous amount of beautiful expensive merchandise which I have amassed over the years, … which I wish to share with [N.F.], and with female friends.

Observe that as part of this offering, I ask absolutely nothing from [N.F.] except one condition. I do not require sex, dating, or friendship. [N.F.] will love these things, including many beautiful, expensive, luxurious fur coats … The condition is that she must end her friendship with [T.C.] forever, must never again have contact or communication with [T.C.] and her immediate relatives, ever , agree to such under oath, and place an irrevocable,

permanent legal restraining order on [T.C.] and her immediate relatives, forbidding them eternally from contact with [N.F.]. The sameconditions must apply to [N.F.’s] parents if they support the police against me or if they fail to fiercely support me against the police. • Observe that: 1. I am offering to share with [N.F.] an enormous amount as surety to guarantee that I am telling the truth about[T.C.]. ….. 3. If [N.F.’s] parents do not agree to my conditions, they will never see their daughter [N.F.] again.

They may counter withrival offers which may beat mine, especially since [N.F.] has more than one relative. However, if all of you girls from the two bankbranches, who liked me, collectively offer [N.F.] your lifelong, caring friendship, I will win, because money is not everything. You willall really like [N.F.]. ….. 5. Someone somewhere must protect [N.F.] from the courts and the police. I repeat again that [N.F.] shouldstay out of Canada until my case is fully resolved. c.

The Conclusions of the Trial Judge [73] At trial, no issue was raised in relation to the fact that the letter written to P.K. fell well outside the time period specified in theindictment.

In convicting the accused of this alleged offence, the trial judge drew all of the following conclusions in her Reasons forJudgment. [74] The trial judge properly focused on the statement in the letter indicating that if the parents of N.F. did not agree to hisconditions, “they will never see their daughter [N.F.] again.” In outlining the relevant legal principles, the trial judge correctly noted that“threatening conduct” under s. 264(2)(

d) of the Criminal Code can consist of a “single threatening act, as long as it causes thecomplainant to be harassed.” See: R. v. Kosikar (1999), (ON CA), 138 C.C.C. (3d) 217 (Ont.C.A.) at para. 20; R. v.Hyra, 2007 MBCA 69, 221 C.C.C. (3d) 494, at para. 22. The trial judge also observed that the threatening conduct must amount to “atool of intimidation which is designed to instill a sense of fear in the recipient.” See: R. v. George, 2002 YKCA 2, 162 C.C.C. (3d) 337,at para. 39; R. v. Burns, 2008 ONCA 6, [2007] O.J. No. 5117, at para. 2; R. v.

K.(K.), 2009 ONCA 100, 241 C.C.C. (3d) 284, at paras.21-30. [75] The trial judge concluded that the “threatening words” written by the accused about N.F. and her parents were “written in thecontext of a plan” that the accused “proposed” to P.K. in the letter. The trial judge noted that, “prima facie, the words suggest a threat,the precise nature of which is unclear.” The trial judge also noted that the words used by the accused were “perceived as a threat” byP.K., Det. Cst.

MacPhail, and N.F. [76] In considering whether the words of the accused were intended “as a tool of intimidation designed to instill a sense of fear inthe recipient,” the trial judge considered the entire context of the letter.

In so doing, Lane J. noted that the details of the plan suggestedthat the accused “trusted [P.K.] and did not expect her to go to the police.” The accused appeared to hope that he would be able to“effectively bribe” N.F. with “material goods” so that she would “stand by him.” If N.F. accepted this plan, she would forfeit herfriendship with T.C. and “alienate her own parents.” The trial judge accurately observed that this plan, viewed objectively, was“irrational,” “convoluted” and made no sense, and that the language of the accused was “vague, grandiose and … utterly delusional.” [77] The trial judge concluded that, clearly, the accused did not intend this plan to be a threat to the “direct recipient of the letter,”namely, P.K.

The trial judge also concluded that “[N.F.] and her parents were the intended recipients of the threatening conduct.” Theaccused was not “just ruminating to a friend about potential litigation strategies.” The accused was “actually soliciting her assistance insupport of his plan.” Accordingly, the “other person” within the meaning of s. 264(1) of the Criminal Code, who the accused “intended”to harass, was “[N.F.] and her parents.” The trial judge indicated that the decision in R. v. Sauvé, 2007 ONCA 888; Leave denied: [2008]S.C.C.A.

No. 149, was “directly applicable” to the question of whether the letter to P.K. was “directed at” N.F. [78] The trial judge concluded that the resulting action of P.K., in going directly to the police after she received this letter, was“perfectly reasonable” in the circumstances.

Lane J. also concluded that the accused was “totally reckless as to what [P.K.] would dowith this letter,” and “certainly was reckless in making the statements” in the letter, “which prima facie, on their face, certainly indicatedthreat.” [79] After reviewing the other evidence, including the earlier comments by the accused to N.F., and her emotional reactions toboth the letters sent by the accused to T.C. and P.K., the trial judge concluded that N.F. was, in fact, harassed by both letters, butparticularly by the threat contained in the second letter to P.K., and that any reasonable person would fear for his or her safety in responseto the letter to P.K., given that it showed that the accused “remained obsessive” about N.F. “months after he had last seen her,” andrevealed a “delusionary plan that threatened to compromise her safety.” d.

Analysis 1. The Reasonableness of the Verdict – Threatening Conduct Directed at N.F. [80] In my view, the verdict reached by the trial judge in relation to this count is a reasonable one that has the support of theevidence. [81] First, the accused’s comments in the letter to P.K. can quite reasonably be viewed as constituting “threatening conduct” on thepart of the accused. The accused indicated that he wanted N.F. to forever end her friendship with T.C. and her relationship with herparents.

The accused expressly stated that if N.F.’s parents did not agree to his conditions, “they will never see their daughter [N.F.]again.” The trial judge concluded, as a matter of fact, that this was “threatening conduct” on the part of the accused, and I see no properbasis upon which to interfere with that reasonable conclusion. [82] Second, while this letter by the accused is written to P.K., the threatening conduct can reasonably be viewed as being“directed” at least in part at N.F.

The trial judge concluded that the “intended recipients” of this threatening conduct” were N.F. and herparents, and that when read in context, it was apparent that the accused was not just speaking theoretically about “potential litigationstrategies,” but was “actually soliciting [P.K.’s] assistance” in furtherance of his plan. [83] Recall that, in this letter: (1) the accused said that he was very concerned that if N.F.’s parents turned against him, they might

be a very detrimental influence on her; (2) the accused said that he was not restricted from personally contacting N.F. and was “hesitant” to ask his friends to contact her, as he did not want to be accused of trying to harass or manipulate N.F. for evidentiary purposes; (3) the accused asked P.K. and some of the other girls from the bank to become friends with N.F., so as to replace T.C. and if they “go against” him, the parents of N.F.; (4) the accused told P.K. of his plan to bribe N.F. for her support provided she ended her friendship with T.C. and her relationship with her parents if they were to support the police against him; and (5) if the parents of N.F. did not agree to his conditions, they would “never see their daughter again.” [ 84 ] In my view, a perfectly reasonable

interpretation of this letter to P.K. is that the accused was trying, not expressly but subtly, to enlist the assistance of P.K. to convey the essence of this bribe/threat along to N.F. and her parents. On my reading of the Reasons for Judgment of Lane J., this was, essentially, the conclusion reached by the trial judge and again, I see no proper basis upon which to interfere with her factual conclusion in this regard. [ 85 ] As the trial judge correctly observed, in R. v. Sauvé , the Court of Appeal for Ontario held that threats could be “directed at” complainants within the meaning of s. 264(2)(

d) of the Code , even if the communications containing the threats were delivered to a third party, in anticipation that they would be subsequently passed on to the complainants. More particularly, in R. v. Sauvé , the alleged criminal harassment arose out of the delivery of three documents ultimately received by one of the complainants, who was the second complainant’s lawyer in ongoing family proceedings against the accused. Both complainants read all three of the documents. The accused argued that his conviction was unreasonable as the threatening correspondence were not “directed at” the complainants.

The first two documents were sent to the lawyer complainant, and the third document was sent to a court office, knowing that it would, in turn, be sent to the lawyer complainant’s office. The accused acknowledged that he knew and intended that this third document would come to the attention of the complainants. The Court of Appeal upheld the convictions of the accused, concluding that this evidence satisfied the legal requirement that the threats be “directed at” both of the complainants.

This decision provides strong support for the analysis undertaken by the trial judge in the present case. [ 86 ] I observe in passing that the trial judge also made all of the other necessary factual findings in support of her conclusion that the accused was guilty of this offence, including: (1) that the accused possessed the necessary mens rea of recklessness in relation to whether the complainant N.F. would be harassed by this threatening conduct; and (2) that the threatening conduct of the accused caused N.F., and would have similarly caused any reasonable person, to fear for her safety or the safety of a member of her family. [ 87 ] The threatening conduct contained in the letter to P.K was, ultimately, brought to the attention of N.F. and her parents by a means different than that planned by the accused, in that it was conveyed to N.F. through the police investigation instead of personally through the efforts of P.K.

This fact is not, in my view, of any legal consequence. As the trial judge correctly observed, the conduct of P.K., in heading directly to the police upon receipt of this letter was “perfectly reasonable” and predictable in the circumstances, and the accused was “reckless” as to what P.K. might do with this letter.

As this means of communicating the threatening conduct in the letter must have been within the subjective contemplation of the accused, the conviction of the accused can hardly be set aside because his goal of communicating the threatening conduct was accomplished in a different way than he had hoped. 2. Amending the Information [ 88 ] The information charging the accused with the criminal harassment of N.F., alleges that the threatening conduct directed at her took place in Toronto between November 1, 2006 and February 1, 2008.

The threatening conduct by the accused is contained in the letter the accused drafted to P.K. in July of 2008. No explanation has been provided for this obvious drafting error. [ 89 ] The theory of the Crown in relation to this allegation of criminal harassment, however, was clear to the accused from the outset of the proceedings.

Indeed, at trial, there was never any complaint or objection raised by or on behalf of the accused that the alleged threatening conduct by the accused fell outside the time period outlined in the information. [ 90 ] Accordingly, I have no doubt that, had any such objection been raised at trial, the information would have been amended to conform with the evidence, especially since s. 601(4.1) of the Criminal Code provides that any variance between the indictment and the evidence is “not material” with respect to the “time when the offence is alleged to have been committed” provided that the indictment was preferred within any prescribed limitation period.

Of course, s. 2 of the Criminal Code defines the term indictment as including “an information or a count therein.” As the information charging this offence was sworn within the six month limitation period prescribed by s. 786(2) of the Code , the language of s. 601(4.1) suggests that the issue of the timing of the offence is simply “not material.” [ 91 ] In all of the circumstances, in my view, it is in the interests of justice to now amend the information. According to s. 683(1) (

g) of the Criminal Code , which is made applicable on

summary conviction appeals by s. 822(1) of the Code , the court may, where it considers it to be “in the interests of justice,” amend an indictment unless the accused has been “misled or prejudiced” in his defence or on his appeal.

As I have indicated, at trial the accused was neither misled nor prejudiced in relation to the manner in which the original charge was formulated, and will suffer no discernible prejudice or be in any way misled if the requested amendment is now made on appeal. [ 92 ] Accordingly, I hereby amend the count in the information charging the offence of criminal harassment in relation to N.F. so as to allege the offence between the dates of November 1, 2006 and August 1, 2008. IV The Crown Sentence Appeal 1. The Mandatory Weapons Prohibition Order a. The Positions of the Parties

[ 93 ] The Crown contends that the trial judge erred in failing to make an order prohibiting the accused from the possession of any firearm, cross-bow, prohibited or restricted weapon, prohibited device, ammunition (prohibited or otherwise), and explosive substance for a period of at least ten years. The Crown had requested this order at trial, but had erroneously advised the trial judge that the order was discretionary. In the result, the trial judge declined to make the order. As the accused was convicted of criminal harassment, this prohibition order was mandatory under s. 109(1) (

b) of the Criminal Code . [ 94 ] Counsel for the accused concedes that the requested order is mandatory and that the trial judge erred in failing to make the order, but contends that I should make the order operate retroactively so that the ten year minimum aspect of the prohibition order would run from the date of sentencing (April 10, 2010). Given that the accused is not imprisoned, the “retroactive” operation of the ten year minimum aspect of the prohibition order is compelled by statute. b.

Analysis and Order [ 95 ] The requested weapons prohibition order was clearly mandatory and should have been made at trial. I have no doubt that it would have been made by Lane J. had the Crown correctly advised the learned trial judge that the order was mandatory according to s. 109(1) (

b) of the Criminal Code . Further, s. 109(2) of the Code clearly prescribes the duration of such orders, stating that orders made under s. 109(1) shall , in the case of a “first conviction” for the offence to which the order relates, prohibit the person from possessing: (

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that (

i) begins on the day on which the order is made, and (ii) ends not earlier than ten years after the person’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 96 ] I am obliged to make the order required by the section.

As this is the “first conviction” of the accused, I hereby prohibit the accused: (1) from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years from the date of conviction, namely, February 5, 2010; and (2) from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. 2.

The Discretionary DNA Databank Order [ 97 ] The Crown contends that the trial judge erred in refusing to make an order authorizing the taking of bodily substances from the accused for purposes of forensic DNA analysis and requiring the accused to submit to the taking of such samples, pursuant to s. 487.051(3) of the Criminal Code . This discretionary DNA Databank order was sought by the Crown at trial on the basis that the accused had been convicted of criminal harassment, a “secondary designated offence” as defined in s. 487.04 of the Code . The order was opposed by the accused and declined by the trial judge.

In her Reasons for Sentence , Lane J. simply indicated that the requested order was discretionary and she was not convinced that it was necessary in this case. [ 98 ]

Section 487.051(3) of the Criminal Code provides that in cases where the accused has been convicted of a “secondary designated offence,” the court, on application by the Crown, may make a DNA Databank order if it is satisfied that the order is “in the best interests of the administration of justice.” The

section also indicates that in deciding whether to make the order, the court shall consider the following: (1) the person’s criminal record; (2) whether he or she was previously found not criminally responsible on account of mental disorder for a designated offence; (3) the nature of the offence; (4) the circumstances surrounding its commission; and (5) the impact such an order would have on the person’s privacy and security of the person. The

section also places an obligation on the court to “give reasons for its decision.” [ 99 ] While Lane J. did not provide any significant reasons for her decision not to make the requested DNA Databank order, I decline to reach a different conclusion, notwithstanding the nature of the offences committed by the accused.

In reaching this conclusion, I rely upon the following considerations: • The accused is now some 57 years old and he has no previous criminal record. • Since the conclusion of the trial proceedings in this matter, the accused has abided by his conditions of probation, and has no outstanding charges. • Prior to sentencing, the accused spent some 17 months in pre-sentence custody in relation to these charges. From the outset, the Crown indicated that an appropriate disposition would be a total sentence of 18 months of imprisonment.

Accordingly, if the accused had been given the 34 months credit for his pre-sentence custody, as would likely have been appropriate at the time, the accused ultimately served nearly twice the custodial period that the Crown considered appropriate. • Clearly, the accused labours under a skewed perception of reality. The record of these trial proceedings reveals that the accused has a paranoid distrust of the police.

While gathering a bodily substance for purposes of forensic DNA analysis for the DNA Databank is normally minimally intrusive to the security of the person interests of adult offenders, the intrusiveness of the requested order on the security of the person interests of the accused in the present case is likely to be much greater. [ 100 ] In all of the circumstances of this case, and in light of its combination of unusual and exceptional features, I am not prepared to interfere with the decision of the trial judge on this issue. Accordingly, this aspect of the Crown appeal is dismissed. V

Conclusion [ 101 ] In the result, the conviction appeal by the accused against his three convictions for criminal harassment is dismissed. [ 102 ] An order shall issue amending the information charging the accused with the offence of criminal harassment by “threatening conduct” directed against N.F., so as to allege that the offence took place between the dates of November 1, 2006 and August 1, 2008. [ 103 ] The Crown appeal against sentence is allowed in part.

The mandatory weapons prohibition order pursuant to s. 109 of the Criminal Code shall issue prohibiting the accused: (1) from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years from the date of conviction, namely, February 5, 2010; and (2) from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. The Crown appeal against sentence is otherwise dismissed. ___________________________ Kenneth L. Campbell J.

Released: April 12, 2013 CITATION: R. v. Savard, 2013 ONSC 2208 COURT FILE NO.: 72/10 and 85/10 DATE: 20130412 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

HER MAJESTY THE QUEEN - and - JOSEPH SAVARD REASONS FOR JUDGMENT [Summary Conviction Appeal] K.L. Campbell J. Released: April 12, 2013