Toronto Criminal Lawyer

Criminal Harassment — Toronto Defence Lawyer

Client:  K.M., Accused
Complainant:  former co-worker
Charges:  criminal harassment (3x); breach undertaking (3x)

The Queen v. K.M.
Ontario Court of Justice, Toronto
Judge Omatsu
(withdrawn: 19 September 2013)

Crown:  M. Bloch, Office of the Crown Attorney, Toronto
Defence:  Craig Penney, Toronto Criminal Harassment Lawyer

¶ 1  CROWN:  There is a joint recommendation for resolution. The complainant is adamant and has been clear in many forms and many ways that she does not wish contact with the accused. The maximum time that this Court could prohibit contact by way of probation would be three years.

¶ 2  However, my friend has proposed a common law peace bond for five years that will provide a greater statement and greater length of time to state very clearly that the complainant wishes no contact and to that end the proposal is for a five-year common law peace bond. My friend has provided me with authorities to indicate that a peace bond greater than the one year under the 810 regime; certainly there is no maximum under a common law jurisdiction. The proposal is for five years. What I would ask, and my friend is aware of this, is that the complainant be called as a witness on the common law hearing. I have about four questions to ask her. I don't believe my friend will have any, and thereafter the proposal will be for a common law peace bond with conditions for the entirety of that five years.

¶ 3  No contact or communication with the complainant. Not to be within 500 metres of anywhere she lives, works, or is known to be. Certainly I will not be putting her address in — on the record or any — I think, in fact, I don't even know her address. And not to possess any weapons. So if that procedure finds favour with the Court, my proposal is to call the complainant as a witness.

¶ 4  MR PENNEY:  Yes, just in terms of the conditions, the place of work is on Yonge Street, which is right on the subway line, so I am going to suggest the following exception: "except when in transit on the subway or in a vehicle."

¶ 5  CROWN:  "When on subway," yes.

¶ 6  MR PENNEY:  Or in a vehicle, just so that she can drive past and take the subway.

¶ 7  CROWN:  Right, but the no contact or communication directly or indirectly...

¶ 8  MR PENNEY: Yes, that's fine.

¶ 9  CROWN: ... by any means stays so if, for some reason, she stops and goes into the place of employment or sees her on the street, that condition is very clear that there is to be no contact absolutely.

¶ 10  MR PENNEY:  In terms of the address, Your Honour, because it's where she works as a — it's on Yonge Street, why don't we just simply have "not attend at her place of" — there's been no issues of ever attending anywhere. The problem is the communication. So I am going to simply have no attendance just 'cause it is a long, long term but I will address that at the end but the issue has been communication and association ... the issue has been communication. There has been no issue with respect to attendance anywhere but I will address that at the end.

¶ 11  CROWN:  With the permission of the Court, embark on this procedure and to that end I call the complainant to the stand.

[The complainant is sworn at this time.]

¶ 12  CROWN: Typically with witnesses I ask background of who they are — I am not going to do that today.

Q. Apart from a chance encounter some eight years ago or so with K.M. in a professional capacity, is there now or has there ever been a relationship that you had with K.M.?

A. Absolutely not.

Q. What forms of contact have occurred since the time you met her?

A. Emails, voice mails, packages delivered to my office.

Q. How did you feel when you received these various forms of communication?

A. Disturbed and threatened and uneasy.

Q. Have you gone to any authorities about these forms of communication?

A. Yes, I went to the police on each time.

Q. How many times would you say you've gone to the police?

A. I'd say at least four or five contacts with the police.

Q. And I understand she was charged with criminal harassment in the past, as well as failing to comply with undertakings by contacting you, is that right?

A. Yes.

Q. And for each one, ostensibly, you were required as a witness, I understand?

A. Yes.

Q. To attend court? Do you want contact of any sort with K.M.?

A. Absolutely not.

Q. Do you want her to send you emails?

A. No.

Q. Do you want her to call you?

A. No.

Q. Do you want her to send you registered letters asking you to drop charges?

A. No.

Q. Do you have any intention of dropping charges if the contact continues?

A. No.

Q. What will you do if you receive any kind of contact or if she comes to your workplace and sees you during the period of the peace bond?

A. I will contact the police immediately.

¶ 13  CROWN:  It is my understanding, then, that the police would arrest Ms K.M. and hold her for a show cause hearing. Those are the questions I have.

¶ 14  MR PENNEY:  I have no questions, Your Honour.

¶ 15  Your Honour, in terms of the unwanted contact, it spans a period, in fact, of about six years. The recent charges are resulting from a package that was sent expressing a romantic interest and seeking a personal relationship. It was not threatening, although how it was perceived was reasonable. We just want Your Honour to be aware of that.

¶ 16  Just so Your Honour is aware of the background, and this is all in the Informations before you — K.M. was charged with criminal harassment back in March of 2012 and she's been involved with the mental health office here since that time; the mental health worker wrote me a letter indicating as early as February 2012. So for about 18 months she's been getting support through the COTA office and there was an expectation that she would get mental health diversion on the criminal harassment.

¶ 17  After that, Your Honour, she contacted the complainant again and that was in November 2012. There was a telephone call and K.M. and the complainant terminated the call. She was charged at that time with a breach and another criminal harassment.

¶ 18  All the criminal harassment charges were withdrawn on an earlier occasion, Your Honour. Today's trial was meant to be on the three breaches. Then there was some contact around the 30th of May 2013 and there are two charges that arise from that, so the breach on the first undertaking, and the breach on the second undertaking; it's essentially one communication but two charges.

¶ 19  And she was held for a show cause hearing at that time, Your Honour, and had a very difficult time in jail for the 48 hours that she was there. She cares for a woman in her 80s and it was a harrowing time for K.M., those that were concerned about her, and those that rely upon K.M.. But suffice to say, Your Honour, that she's been working actively with the mental health office. She's been assessed. She's gotten counselling. She's been assessed on more than one occasion.

¶ 20  I spoke to Dr. Gojer on the last time. He says this is not a situation where further counselling is going to assist, nor will medication assist; but establishing a boundary will.

¶ 21  Well, two things would assist. One, having the complainant speak with her own voice today, letting K.M. know the status of the situation between the two of them and there is no doubt about that now. And secondly having a court order that establishes a boundary for the next five years. That boundary will give the complainant the comfort of knowing that a court order is in place and is being made with K.M.'s consent today. K.M. is taking ownership of that.

¶ 22  Taking ownership, Your Honour, has far more power and effect, in my submission, than anything that could be imposed through probation. So having regard to all that, Your Honour, I am going to ask Your Honour to exercise your jurisdiction to impose a peace bond for five years. That's much longer than normal but I don't think I can give Your Honour further background as to why the five years is the appropriate result here. I am going to ask Your Honour to keep the conditions simple: not to communicate or associate with the complainant directly or indirectly. And I am going to suggest, Your Honour, with respect to attendance, because there has been no attendance issues, to simplify that to "not to attend the complainant's residence, place of work, or any place you know her to be."

¶ 23  And before Your Honour orders that, I just want to make it clear to K.M. — so that we are all on the same page — that once that Order is made, it has to be respected. So even if the complainant contacts you directly or indirectly, K.M., you are not allowed to respond.

¶ 24  CLIENT:  No, I would not, no; not ever.

¶ 25  MR PENNEY:  The only way that contact would be allowed, the only possible way ...

¶ 26  CLIENT:  No.

¶ 27  MR PENNEY:  ... is if we come back before Her Honour and Her Honour specifically gives you permission to contact in the next five years. That is the only way.

¶ 28  CLIENT:  Why would she do that?

¶ 29  MR PENNEY:  Okay, and that's a good response. I just want to make it abundantly clear that what we're doing today is very reasonable.

¶ 30  CLIENT:  Yes. Yes.

¶ 31  MR PENNEY:  It's going to bring comfort to everybody but it's important to understand that once this dye is cast, it has to be respected.

¶ 32  CLIENT:  Yes.

¶ 33  MR PENNEY:  Okay? Thank you, Your Honour.

¶ 34  THE COURT:  Thank you. K.M., would you stand up, please? K.M. is before the Court on three counts, fail to comply with bail and two counts of fail to comply with undertakings and I heard evidence from the complainant in this matter, and I heard from both counsel and I believe as well as from yourself ...

¶ 35  CLIENT:  Pardon?

¶ 36  THE COURT:  I also heard from you.

¶ 37  CLIENT:  Yes, yes.

¶ 38  THE COURT  That you agree to the terms of this common law peace bond, is that correct?

¶ 39  CLIENT:  Yes.

¶ 40  THE COURT:  Okay, and you will obey the terms?

¶ 41  CLIENT:  Yes.

¶ 42  THE COURT:  Okay, so you are going to be subject to a common law peace bond for five years. The terms are keep the peace and be of good behaviour, have no contact of any sort, direct or indirect, with the complainant. So that means no sending packages, emails, voice mails...

¶ 43  CLIENT:  Of course not.

¶ 44  THE COURT:  ...in person, nothing.

¶ 45  CLIENT:  No.

¶ 46  THE COURT:  Okay, and that also means no contact via a third person. Like you couldn't ask a friend to contact her. So that means indirect, okay? No contact at all.

¶ 47  CLIENT:  No. I have no wish to now.

¶ 48  THE COURT:  Okay, very good.

¶ 49  CLIENT:  None at all.

¶ 50  THE COURT:  And do not attend at any place that you know her to be...

¶ 51  CLIENT:  No.

¶ 52  THE COURT:  ...where she might work or where she might live. So that means just don't go to those places at all, all right? So do you understand those terms?

¶ 53  CLIENT:  I do.

¶ 54  THE COURT:  It will be for five years and you can sign the bond now.

¶ 55  CLIENT:  Yes.

¶ 56  THE COURT:  Thank you very much. You have to press hard. Maybe you should make another copy so that it's very clear. Do you mind? Just have a seat. He is going to make another — he is going to make a copy so that it's very clear to you because you are going to have to have this for five years.

¶ 57  CLERK:  Oh, and Mr. Bloch, how much — amount?

¶ 58  CROWN:  $500 without security, without deposit.

¶ 59  CLERK:  Thank you.

¶ 60  CROWN:  No surety.

¶ 61  THE COURT:  Can you please sign the bond very — with a very heavy hand because it doesn't go through all the copies — or just sign each page. Okay. Mr. Penney, can you make sure that signature is clear on all three copies?

¶ 62  MR PENNEY:  I will, Your Honour.

¶ 63  THE COURT:  Thank you.

¶ 64  CLERK:  Just a few more moments, please.

¶ 65  THE COURT:  We will get it perfect. Perfect now? Thank you. Can you just show her where to sign? And you can throw those other copies out.

¶ 66  MR PENNEY:  Sorry, Your Honour, you didn't mention the no weapons in the — in your Order. Is that something you intended (inaudible)?

¶ 67  THE COURT:  No weapons?

¶ 68  CROWN: I would think so, that...

¶ 69  THE COURT:  Okay, we will add that as well.

¶ 70  CROWN:  No weapons as defined in the Criminal Code (inaudible).

¶ 71  THE COURT:  No weapons as defined in the Criminal Code.

¶ 72  MR PENNEY:  I am just clarifying because Your Honour didn't say it. That's fine.

¶ 73  THE COURT:  Okay, let's add no weapons.

¶ 74  MR PENNEY:  It's there, Your Honour.

¶ 75  THE COURT:  Is it? Oh.

¶ 76  MR PENNEY:  I just want to confirm that it was — that that's what Your Honour intended.

¶ 77  THE COURT:  All right, yes. Has the bond been signed?

¶ 78  MR PENNEY:  Almost, Your Honour.

¶ 79  THE COURT:  Oh, okay.

¶ 80  MR PENNEY:  The bond has been signed. I am handing it back to the clerk.

¶ 81  CROWN:  The Criminal Code charge needs to be marked as withdrawn at the request of the Crown by virtue of signing a peace bond for five years.

¶ 82  THE COURT:  The bond having been signed, the three charges are withdrawn at the request of the Crown. Thank you and good luck, ma'am.