DATE: 20000210
DOCKETS: C23193, C28591 and C30481
COURT OF APPEAL FOR ONTARIO
CATZMAN, CARTHY and WEILER JJ.A.
BETWEEN: DOCKET: C23193
HER MAJESTY THE QUEEN )
(Respondent) )
–and– )
)
MELVIN KRUSHEL ) Daniel Kleiman and Paul Calarco,
) for the appellant Krushel
(Appellant) )
) The appellant Connors, in person
)
–and– ) The appellant Grey, in person
)
THE ATTORNEY GENERAL ) Gary Trotter and Laurie Lacelle,
OF CANADA ) for the respondent
)
(Intervener) ) Jeffrey Kehoe, for the intervener
)
) Marie Henein, Amicus curiae
)
) Heard: September 13-15, 1999
AND BETWEEN: DOCKET: C28591
HER MAJESTY THE QUEEN )
)
(Respondent) )
–and– )
)
FABIAN MARTIN CONNORS )
)
(Appellant) )
)
–and– )
)
THE ATTORNEY GENERAL )
OF CANADA )
(Intervener) )
DOCKET: C30481
AND BETWEEN:
HER MAJESTY THE QUEEN )
)
(Respondent) )
–and– )
)
SEYMOUR GREY )
)
(Appellant) )
)
–and– )
)
THE ATTORNEY GENERAL OF CANADA )
)
(Intervener) )
)
)
The appellant Melvin Krushel appeals from the conviction imposed
by Mullen J. on June 8, 1995 and from the sentence imposed by
Mullen J. on January 24, 1996.
The appellant Fabian Martin Connors appeals from the conviction
imposed by Mitchell J. on August 6, 1997 and from the sentence
imposed by Mitchell J. on November 3, 1997.
The appellant Seymour Grey appeals from the conviction imposed by
Blacklock J. on January 24, 1997.
CATZMAN J.A.:
The convictions and the sentences
[1] All three appellants were convicted of criminal harassment
under s.264 of the Criminal Code. That section provides, in
relevant part:
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.
(3) Every person who contravenes this section
is guilty of
(a) an indictable offence and is liable
to imprisonment for a term not exceeding five
years; or
(b) an offence punishable on summary
conviction.
… .
[2] The appellant Krushel was convicted of criminal harassment
under s.264 by engaging in the conduct referred to in
s.264(2)(c). The victim was his former common law spouse. He
was sentenced to 90 days, to be served intermittently, and two
years probation.
[3] The appellant Connors was convicted of criminal harassment
under s.264 by engaging in the conduct referred to in
s.264(2)(b). The victim was his former wife. He was sentenced
to 4 months and three years probation.
[4] The appellant Grey was convicted of criminal harassment
under s.264 by engaging in the conduct referred to in
s.264(2)(b). The victim was a young girl, 12 years of age. He
had served 127 days in pre-trial custody and was sentenced to one
further day, and three years probation.
The Charter Grounds
[5] The appellants in all three appeals argued that s.264 of the
Code contravened the Charter of Rights and Freedoms. We were
urged to find that the criminal harassment section (also known as
the “anti-stalking law”) infringed ss.2(b) and 7 of the Charter.
For the reasons that follow, I would reject the appellants’
submissions regarding the alleged infringement of these sections
of the Charter.
(i) Section 7
[6] Counsel for Krushel submitted that s.264 infringed s.7 of
the Charter for two reasons: first, that the section was
impermissibly vague in that it fails to give sufficient notice of
what conduct is prohibited; and second, that it allows the
morally innocent to be punished, specifically, in its failure to
require that the accused have the intention to cause the victim
to fear for their safety or the safety of anyone known to them
(the “constructive liability argument”).
[7] The constructive liability argument was considered by the
Alberta Court of Appeal in R. v. Sillipp (1997), 120 C.C.C. (3d)
384; leave to appeal to S.C.C. refused May 14, 1998: [1998]
S.C.C.A. No. 3 (Q.L.). In that case, as in this, the appellant
argued that s.264 allowed the morally innocent to be punished
because it lacked a mens rea requirement attaching to the
consequence of reasonable fear. That court concluded that s.7
was not infringed by the provisions of s.264. At pp. 397-398,
Berger J.A., speaking for the court, described the operation of
the section in the following terms:
In my view, the actus reus of the offence of
criminal harassment is constituted by volitional
subsection (2) conduct which meets discernible
standards of nature, cause and effect, with the
mens rea requirement being that of an intention to
engage in that conduct or, at minimum, recklessness
or wilful blindness, relative to that conduct.
That which is prohibited is a person engaging in
subsection (2) conduct with knowledge (reckless or
wilful blindness) that such conduct is causing the
complainant to be harassed. The mens rea of the
offence is the intention to engage in the prohibited
conduct with the knowledge that the complainant is
thereby harassed.
…
A conviction under s.264 requires that the accused
have “known” that his subsection (2) conduct was
causing the complainant to be harassed, or that he was
aware of such risk and was reckless or wilfully blind
as to whether or not the person was harassed. The
Appellant’s “morally innocent accused” who honestly
believed that his subsection (2) behaviour was not
known to the complainant, and who was not reckless or
wilfully blind, would escape criminal liability.
[8] In the result, Berger J.A. concluded, at p. 399:
The Appellant’s argument that it is a matter of
constitutional necessity that the element of mental
culpability be linked to the prohibited consequence
of causing actual fear in the complainant is unfounded.
Clearly Parliament has created a new kind of culpable
activity – subsection (2) conduct which, by objective
standards (as described earlier in this judgment), is
of a nature and extent as to reasonably cause fear.
Such conduct is deemed by s. 264 to be criminal
activity. Thus, in accordance with the principle
set out in DeSousa (supra), given that there is in
s. 264 a sufficiently blameworthy element in the actus
reus to which the culpable mental state attaches,
foresight of the prohibited consequence of causing
actual fear is not required in order to hold the
accused responsible for the results of his or her
unlawful activity.
[9] In reaching this conclusion, Berger J.A. noted (at pp. 396-
398) that the contention that there must be symmetry between mens
rea and each consequence of an offence had been expressly
rejected by McLachlin J. in R. v. Creighton (1993), 83 C.C.C.
(3d) 346 (S.C.C.) and (at p. 399) that there need only be a
sufficiently blameworthy element in the actus reus to which the
culpable mental state attaches: R. v. DeSousa (1992), 76 C.C.C.
(3d) 124 (S.C.C.). I agree with Berger J.A., and I would reject
the constructive liability argument.
[10] The argument that s.264 is impermissibly vague was not
considered by the Alberta Court of Appeal. However, in an
earlier challenge to s.264, the Alberta Court of Queen’s Bench
rejected that argument: R. v. Sillipp (1995), 99 C.C.C. (3d)
394. In that proceeding, Murray J. dismissed an application to
declare s.264 to be of no force and effect, finding, inter alia,
that the section did not suffer from vagueness. His reasons on
this point appear at p. 406:
In my opinion, s.264 does not suffer from vagueness.
Certainly there are many facets of it that will have
to be interpreted by the court. I have no doubt that
as time progresses it will be given a constant and
settled meaning. I have no problem interpreting s.264
so as to understand that certain conduct is subject to
legal restrictions and the area of risk is set out,
namely, if you intentionally behave in certain ways
knowing that by doing so you are harassing another
person, then if your conduct causes that person to
reasonably fear for his or her safety, you run the
risk of being criminally sanctioned. I would think
that anyone reading the section would receive that
message loud and clear. I do not believe that it
has the effect of permitting a “standardless sweep”
so as to allow the police, or for that matter, the
judiciary, to simply use its discretion in how they
interpret it or apply its provisions which was the
concern of Lamer C.J.C. in Morales, supra. I have
listened to argument by Crown and defence counsel
and I am satisfied that the legislation permits the
framing of a meaningful legal debate with respect to
the objectives contained in the legislation. In my
view, it provides “an adequate basis for reaching a
conclusion as to its meaning by reasoned analysis
applying legal criteria”.
[11] I agree with Murray J., and I would reject the appellant’s
argument that s.264 violates s.7 because it is impermissibly
vague.
(ii) Section 2(b)
[12] Counsel for Krushel further submitted that s.264 violates
the right to freedom of expression guaranteed by s.2(b) of the
Charter. In his submission, the behaviour criminalized under
s.264 constitutes “expression” within the meaning of s.2(b),
which extends to any expressive behaviour that attempts to convey
meaning, including undesirable or offensive expression. Thus,
besetting or watching a dwelling house for the purpose of
conveying meaning is a protected form of expression regardless of
the content of the meaning so expressed.
[13] This s.2(b) argument, while not considered by the Alberta
Court of Appeal in Sillipp, was canvassed by Murray J. in the
judgment to which I have referred above. Murray J. found that
s.264 did not infringe s.2(b) but that, if it did, it was saved
by s.1. On the s.1 argument, Murray J. made an extensive
analysis (at pp. 413-419) of the factors enunciated in R. v.
Oakes, [1986] 1 S.C.R. 103, and concluded (at p. 419):
In the result, I am satisfied that the Crown
has established on a preponderance of probabilty
that such limit as has been imposed on the forms
of expression set out in s.264 is reasonable and
demonstrably justified in a free and democratic
society.
[14] I am prepared to assume that the right of freedom of
expression guaranteed by s.2(b) is engaged by the provisions of
s.264. Having said that, I am reminded that the s.1 analysis
permits “a sensitive, case oriented approach to the determination
of … constitutionality [and that] not all expression is equally
worthy of protection. Nor are all infringements of free
expression equally serious.”: Rocket v. Royal College of Dental
Surgeons of Ontario, [1990] 2 S.C.R. 232 at 246-247. In my
assessment, the forms of expression said to be infringed by s.264
(which Murray J. described, accurately, at p. 413 as “attempts
by persons to convey meanings of latent physical violence and
direct psychological violence to other persons”) must be at the
low end of the scale. It was this consideration that animated
much of Murray J.’s extensive analysis of s.1, and I agree with
his conclusion, set out above, respecting the application of that
section.
The Non-Charter Grounds
[15] In addition to the constitutional arguments, the appellants
made submissions with respect to a number of other grounds of
appeal.
(i) Krushel
[16] The first such submission made on behalf of Krushel
concerned the admission of evidence of the appellant’s conduct
from the period between May 1991 and November 1993, prior to the
period specified in the indictment. The trial judge admitted
that evidence “for the sole purpose of showing the state of mind
of the complainant during the period set forth in the
indictment”.
[17] Counsel for Krushel submitted that the trial judge erred in
admitting this evidence. I do not agree. Section 264(1) refers
to conduct that causes the victim “reasonably, in all the
circumstances, to fear for their safety or the safety of anyone
known to them.” Pre-charge conduct is admissible as going to
the issue whether the complainant’s fear was reasonable in all
the circumstances: R. v. Hau, [1996] B.C.J. No. 1047 (S.C.); R.
v. Ryback (1996), 105 C.C.C. (3d) 240 (B.C. C.A.), leave to
appeal refused 107 C.C.C. (3d) vi; R. v. S.B., [1996] O.J. No.
1187 (Gen. Div.). The trial judge properly admitted the evidence
for this purpose and properly instructed himself regarding the
limited purpose for which it could be used.
[18] Counsel for Krushel further argued that the trial judge
erred in finding that the complainant’s fear was reasonable in
all the circumstances. In his submission, Krushel’s conduct
could not support the alleged fear of the complainant or, if the
complainant did fear for her safety, her fear was objectively
unreasonable. As an example, he suggested that the complainant
had misinterpreted Krushel’s comment that “if he went down, he
would take her with him” which, counsel suggested, referred to a
civil suit between them. In a related submission, he argued that
the verdict was unreasonable and was not supported by the
evidence and, in particular, that the trial judge misapprehended
the evidence in finding that the complainant feared for her
safety and that Krushel’s conduct caused that fear.
[19] The test applicable to the question whether a verdict is
unreasonable and cannot be supported by the evidence is whether a
judge or jury properly instructed and acting reasonably could
have rendered the impugned verdict. In applying this test, an
appellate court must re-examine and to some extent reweigh and
consider the effect of the evidence that was before the trier of
fact to determine whether it meets the test. While this rule
applies equally to a verdict based on findings of credibility,
an appellate court is obliged to show great deference to the
findings of credibility made at trial.
[20] Applying these principles to Krushel’s appeal, it is clear
that neither of the submissions under consideration can succeed.
Krushel engaged in a persistent course of watching and following
the complainant. His statement that he would “take the
complainant with him” was characterized as a threat by the trial
judge. Even if one accepts that the complainant misunderstood
the appellant’s comment, it cannot be said that her
interpretation was not reasonable in all the circumstances.
There was ample evidence to support the trial judge’s findings,
and I see no basis on which to interfere with them.
[21] The final submission of counsel for Krushel was that the
trial judge erred in refusing to reopen the case after Krushel
was convicted but prior to his sentencing. Krushel did not
testify at the trial. After he was convicted, he applied to re-
open the case to permit him to give evidence. In support, he
deposed that he had wanted to testify, but that he had followed
the advice of his trial counsel that he should not do so. One of
the considerations behind trial counsel’s advice was a concern
that the Crown might use a prior statement, made by Krushel
during an examination for discovery in collateral civil
proceedings, that he had at one time contemplated killing his
wife.
[22] The advice of trial counsel may or may not have been correct
on the law as it stood at the time of Krushel’s trial: R. v.
Kuldip (1990), 61 C.C.C. (3d) 385 (S.C.C.); Goodman v. Rossi
(1995), 24 O.R. (3d) 359 (C.A.). The current rule of civil
procedure, which came into force after this trial, permits the
use of evidence obtained on discovery in one proceeding to be
used to impeach the testimony of the deponent in another
proceeding: rule 30.1.01(6).
[23] But the advice of Krushel’s trial lawyer was sound for
another reason, that he also gave to Krushel. The evidence that
Krushel sought to give, to which he testified on his motion to re-
open, was to the effect that he had driven by or near the
complainant’s home approximately 3 or 4 times a day in 1992 and
1993. At times, he used a video camera. He inspected her
garbage at her home and at her office. He said that he had done
all of this in an attempt to collect financial information about
his wife that would demonstrate she had misrepresented her income
when minutes of settlement were negotiated in family law
proceedings between them. In his affidavit in support of the
motion to re-open, Krushel deposed that his previous lawyer:
expressed the opinion that my efforts to watch
Ms. Morrison’s home or workplace in the latter
part of 1992 and the early part of 1993 prior
to the period of the indictment (approximately
1,000 times or a few times a day on average)
would be used by the learned trial judge, in
relation to the criminal harassment charge, as
evidence that I was obsessed with my ex-wife
and intended to harass her by watching her.
[24] In his reasons for refusing to reopen the trial, the trial
judge observed that such relief should be granted only in
exceptional circumstances. He noted that all of the evidence
that Krushel sought to give had been known to him prior to the
completion of the trial, that his decision not to testify had
been a tactical one, and that there were no exceptional
circumstances that warranted reopening the trial. I agree.
[25] On the appeal, Krushel sought to address fresh evidence in
the form of voluminous further material in support of various
complaints regarding his trial. In my view, none of this
evidence should be received. All of it could have been adduced
at the trial, and no explanation has been given why it was not
proferred there. It does not bear upon a decisive or
potentially decisive issue. It is not such that, if believed,
could, when taken with the other evidence adduced at the trial,
reasonably be expected to have affected the result. In short, it
does not meet the criteria for admissibility of such evidence in
this court. The motion to admit this evidence is refused.
(ii) Connors
[26] The first ground of appeal addressed by the appellant
Connors in his submissions was that the trial judge erred in
admitting evidence of his conduct from 1987 to August 1993. This
ground of appeal fails. As noted above, pre-charge conduct is
admissible as going to the issue whether the complainant’s fear
was reasonable in all the circumstances. It may also be relevant
to the issue whether the accused knew that, or was reckless
whether, the complainant was harassed: R. v. Ryback, supra; R.
v. Kosikar, [1998] O.J. No. 5558 (Gen. Div.), aff’d (1999), 178
D.L.R. (4th) 238 (Ont. C.A.). In my view, the evidence was
properly admissible as relevant to the reasonableness of the
complainant’s fear and to the appellant’s mental state.
[27] Connors’ second ground of appeal related to the time frame
covered by the indictment against him. The indictment alleged
that he committed the offence of criminal harassment between
January 1993 and March 1997, but the section creating the offence
of criminal harassment was not proclaimed into force until August
1, 1993. I am satisfied that no substantial wrong or miscarriage
of justice resulted from this error. There was abundant evidence
of conduct between August 1, 1993 and March 1997 that supported
the appellant’s conviction under s.264 and, as noted, evidence of
his earlier conduct was admissible for the purposes I have
indicated.
[28] Connors’ third ground of appeal was that the trial judge
erred in failing to apply the correct standard of proof in
finding him guilty. We were invited to find that the trial judge
failed to consider the possibility of acquittal where the court
disbelieves the testimony of the accused but is nevertheless left
with a reasonable doubt by that testimony. This ground of appeal
cannot succeed. In his reasons for judgment, the trial judge
stated that he preferred the complainant’s evidence to the
appellant’s evidence and that he was satisfied beyond a
reasonable doubt that the charge against the appellant was made
out. Viewed as a whole, the reasons for judgment indicate that
the trial judge neither believed the testimony of the accused nor
was left with a reasonable doubt by that testimony. I am
satisfied that the trial judge knew and applied the requisite
standard of proof.
[29] Connors’ final submission was that the verdict was
unreasonable and could not supported by the evidence. This
submission is completely answered by a reading of the transcript
of the proceedings at trial, a copy of which was prepared and
furnished to the court after the argument of these appeals had
concluded and judgment had been reserved. It appears from the
transcript that Connors had assaulted the complainant on several
occasions during their relationship and that he was aware that
she did not wish to have contact with him. There was ample
evidence to support the trial judge’s findings that Connors was
reckless as to whether his former wife was being harassed and
that the complainant experienced fear that was reasonable in all
of the circumstances. Viewed as a whole, the evidence was amply
capable of supporting the verdict.
(iii) Grey
[30] The appellant Grey also submitted that the trial judge’s
verdict was unreasonable and could not be supported by the
evidence. Again, an examination of the evidence refutes this
submission. While the trial judge found that he could put little
weight on the testimony of the complainant, who was a young girl
at the relevant time, he found the complainant’s mother to be a
highly credible witness and he declined to accept the appellant’s
explanation of events. These findings are supported by the
evidence, which was amply capable of supporting the verdict.
Sentence
(i) Krushel
[31] The appellant Krushel was sentenced to 90 days imprisonment
to be served intermittently, followed by two years probation. He
sought leave to appeal against his sentence, submitting that it
was harsh and excessive having regard to all the circumstances
and that this was an appropriate case for the sentence to be
served in the community. In passing sentence, the trial judge
took into account Krushel’s lack of remorse and the need for
general and specific deterrence. He specifically noted that
there was no violence involved and that the appellant was a first
time offender. But Krushel’s conduct spanned a number of years
and, indeed, part of it occurred during the currency of a peace
bond. It had a dramatic effect on the lives of the victim and
his children. This was not a case for a conditional sentence. I
find no error in principle, and the sentence imposed is not
manifestly unfit or clearly unreasonable. I see no basis to
interfere with it.
(ii) Connors
[32] The appellant Connors was sentenced to four months
imprisonment, followed by three years probation. He also sought
leave to appeal against his sentence, submitting that it was
harsh and excessive having regard to all the circumstances. In
passing sentence, the trial judge emphasized the need for general
and specific deterrence and Connors’ lack of remorse. He made no
error in principle, and the sentence he imposed is not manifestly
unfit or clearly unreasonable. I see no basis to interfere with
it.
Conclusion
[33] I would dismiss the appellants’ appeals against conviction.
I would grant leave to the appellants Krushel and Connors to
appeal against sentence, but I would dismiss their sentence
appeals.
[34] On behalf of the court, I should like to express our
gratitude to Ms. Marie Henein, who rendered considerable
assistance with her fair and capable submissions as amicus
curiae.
Released: FEB 10 2000 Signed: “M.A. Catzman J.A.”
“I agree J.J. Carthy J.A.”
“I agree K.M. Weiler J.A.” |