Crown: N. Golwalla, Office of the Crown Attorney, Oakville
Defence: Craig Penney, Toronto Domestic Defense Attorney
¶ 1 THE COURT: This is judgment in the matter of Regina v. P.C. is charged that on or about September 12th, 2004, at the Town of Milton, knowing that [the complainant] is harassed or being reckless as to whether [the complainant] is harassed, did without authority repeatedly follow from place to place [the complainant] thereby causing [the complainant] to reasonably in all the circumstances fear for her safety, contrary to Section 264(2)(a) of the Criminal Code.
¶ 2 On consent, this charge proceeded by way of two exhibits being filed. The first exhibit was a statement of the complainant that was provided to the Halton Regional Police Service on September the 12th, 2004, commencing at 3:25 p.m. and concluding at 3:48 p.m. on that date. It was conceded by the defence that that statement was both reliable and credible. The second exhibit filed was entitled Concession Regarding Facts and Law by P.C. There is a clear indication in the concessions of facts and law of the narrow issue that is at issue in this particular trial. In that second statement — that's Exhibit 2 — it was indicated that the accused, or on behalf of the accused, that he agrees that the essential elements of criminal harassment are as outlined by the Ontario Court of Appeal in R. v. Kordrostami, (2000) 47 O.R. (3d) 788 at page 791. Those essential elements of the offence were set out as follows: "(1) It must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c) or (d) of the Criminal Code; (2) It must be established that the complainant was harassed; (3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; (4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and (5) it must be established that the complainant's fear was in all the circumstances reasonable."
¶ 3 It was admitted in Exhibit 2 that, if the Court were to find that item 1 had been satisfied as alleged in the information regarding the September 12th incident, the accused was prepared to concede that items (2), (3), (4) and (5) had been made out regarding the September 12th incident and that there could be a finding of guilt.
¶ 4 The narrow issue, then, was clearly set out in Exhibit 2. The narrow issue in this trial is: Did the accused's conduct on September the 12th, 2004, amount to conduct which consists of repeatedly following from place to place the other person or anyone known to them? And in this case, of course, the repeatedly following from place to place is the complainant in this trial.
¶ 5 In Exhibit 2, the concessions regarding the facts, there was the following pre-charge conduct that was referred to and admitted. It is as follows: "The accused was cautioned on May 13th, 2004, by a police officer with the Halton Regional Police Service not to have contact with [the complainant]. Despite this caution, the accused communicated with [the complainant] on at least three occasions between May 14th, 2004, and September 11th, 2004, those being as follows: (1) On May 14th, 2004, the day after being cautioned, he left a note on [the complainant]'s vehicle. The note read: '... I'm sorry you felt it necessary to involve the police. I thought we had parted on decent terms last night. How humiliated I feel. Don't worry I will not harass you any further'; (2) On June 6, 2004, the parties had a face-to-face encounter at the Laurier Plaza in Milton; and (3) On September the 10th, 2004, they had another face-to-face encounter in a parking lot in the area of 8201 Lawson Road in Milton."
¶ 6 On September 11th, 2004, the accused was arrested and charged by a member of the Halton Regional Police Service with criminal harassment as a result of the communications that I have just referred to that occurred between May 14th, 2004, and September 11th, 2004. On that same date, September 11th, 2004, the accused was subsequently released by the police upon signing a police undertaking with conditions that included a condition that he not have contact with [the complainant].
¶ 7 This evidence is referred to for one purpose only. It is pre-charge conduct that is admissible to prove the context in which the impugned conduct took place. This was made clear in the recent Ontario Court of Appeal decision of R. v. D.(D.),  O.J. No. 4904, dated November the 18th, 2005. It is as of yet, I believe, an unreported case, but it is clear that it makes that type of evidence that I have just referred to admissible for the purpose that I have just spoken of.
¶ 8 Related to the issue of repeatedly following the complainant from place to place, I note the following evidence that is contained in the exhibits that are before the Court. First, in the complainant's statement that was provided on September the 12th, 2004, and which is conceded is both credible and reliable, the complainant says the following:
I came here today because I felt like I was being followed by P.C. I was told by Officer Biham (ph) that since P.C. was now charged with criminal harassment if he tried to follow me again to either call the police right away or if in reach of the station come directly to the station. Today, I was heading south on Ontario Street to go to the Laurier Plaza. P.C. passed me on Ontario Street heading north. I saw him take a good look to his left so he knew it was me. As I kept proceeding towards the plaza, I kept watching in my rear-view mirror. I saw his blinker and his car turn at the very first right. I got to the plaza and I went to the far end of the parking and parked facing Pet Value. I took a look around the lot at that time but didn't notice him in there. I made my purchases in Pet Value, I came out and went to my car, and, before I got in my car, I looked over the parking lot again and noticed a black Honda to the right of me and back in the last row in front of the curb and sidewalk. It was facing the plaza. I went in my car and remembered I hadn't gone to the Scotia Bank yet to pay my bill. I went to the bank leaving the car where it was. I did my banking and left the bank and walked along to Farah's. When I came out of Farah's, I looked straight into the parking lot and saw P.C. in his car but the car was moved now a couple of rows up facing Farah's in between two other vehicles. I saw him sitting in the car. He had on a red shirt. Then I went to my car and left the parking lot to come down to the station. As I was heading south on Ontario Street to come to the station, I noticed a black Honda following slowly behind me. I continued and kept looking in my rear-view mirror and at the lights turned right at Childs and into the station. When I was in the drive here, the road coming into the station, I did see him parallel on Ontario Street to me. I continued around and circled around back of the station and into the station parking lot. I came into the station. I thought I seen a black Honda across the way in the parking lot, not sure if it was him.
Question: What kind of car is it exactly?
Answer: Black Honda Civic.
Question: Can you identify that the driver was P.C.?
¶ 9 In addition to that, there is the evidence in Exhibit 2, the concessions regarding the facts as follows, that was provided by the accused to the police. "The accused provided a statement to police on September the 12th, 2004. The accused admitted to being at the Laurier Plaza and travelling from the plaza to the Milton Mall. He also admitted to seeing [the complainant] pull into — referring to Halton Regional Police Service 12 Division Milton — getting out of her car and walking towards the doors of the police station."
¶ 10 Based on the evidence that is in Exhibit 1 and Exhibit 2, I make the following findings and observations. First, after the first passing of the vehicles on Ontario Street there is no evidence as to where the accused Mr. C. turned when he turned at the first right or, for that matter, there is no evidence where he went until his car was later seen an unspecified amount of time later in the Laurier Plaza.
¶ 11 Second, there is no evidence as to how apparent it was to the accused that the complainant's destination when they passed was in fact the Laurier Plaza.
¶ 12 Third, I am satisfied that the black Honda first referred to by the complainant when she came out of Pet Value was, in fact, the accused's motor vehicle, although I note that no one, including the accused, was observed in it at that time.
¶ 13 Fourth, while I am satisfied that the accused was subsequently observed in his motor vehicle in the Laurier Plaza, the evidence is insufficient to conclude that the accused followed the complainant to the Laurier Plaza and the evidence is insufficient to conclude when he became aware of her presence at the plaza other than when she came out from doing the last part of her shopping at that mall.
¶ 14 Fifth, the evidence is sufficient based on the complainant's subsequent observations that the accused followed the complainant when she went from the plaza to the police station. That is based on what I just read from the complainant's statement: that, as she went from her car and left the parking lot to come down to the station, she was heading south on Ontario Street and noticed the black Honda following slowly behind her. It is as well based on the evidence of the accused in his statement to the police that he admitted to seeing [the complainant] pull into the Milton Police Station, getting out of her car, and walking towards the doors of the police station; however, I note that neither the distance between these places nor the time that it took for these incidents to take place is specified. It is clear that the accused saw the complainant pull into the police station parking lot and go into the police station. The evidence is not conclusive regarding where he was when he made these observations.
¶ 15 The law regarding the meaning of the word "repeatedly" as it is used in s. 264(2)(a) and (b) was extensively canvassed recently by the Ontario Court of Appeal in the decision provided to me by counsel of R. v. Ohenhen. It is reported at  O.J. No. 4072, and it is dated September 27th of 2005. The Ohenhen case was in fact with respect to s. 264(2)(b) regarding the phrase "repeatedly communicating" for the purpose of the criminal harassment section in s. 264; however, certain principles emerge from that case that are of guidance in this particular case concerning the definition of the word "repeatedly" as it is found in s. 264(2)(a).
¶ 16 In paragraphs 31 and 32 of that decision the Court indicates as follows: "In my view, the dictionary definitions of the word 'repeat' and 'repeated', from which the adverbial form 'repeatedly' is derived lead me to conclude that conduct which occurs more than once can, depending on the circumstances of the case, constitute 'repeated' conduct or conduct which is 'repeatedly' done and the section is met. In my view, it is unnecessary that there be a minimum of three events or communications. 'Repeatedly' obviously means more than once but not necessarily more than twice. While one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(c) and (d), it will not be sufficient to satisfy s. 264(2)(b). More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and should not be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs more than once, in my view, the actus reus ["the act"] can be made out. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and accused. It is in this context that a determination will be made as to whether there has been repeated communication. On the facts of this case, it was clear that neither of the communications could be characterized as innocuous or accidental. In the context in which they were made, these two communications would be sufficient to constitute 'repeatedly' communicating as set out in s. 264(2)(b)."
¶ 17 Although it was not necessary to decide the specific facts in the Ohenhen case, the Court prior to coming to its ultimate conclusion cited with approval the case of R. v. Belcher which is reported at (1998) 50 O.T.C. 189. It is a decision of the Ontario Court (General Division). That particular case this involved the definition of "repeatedly following" and the definition of the word "repeatedly" was, in fact, in issue. At paragraph 22 of that decision, the Court of Appeal refers to what they characterize as "the thoughtful reasons of Eberhard J." and quote her with approval, in my view, when they say the following, quoting from Eberhard J.: "I am persuaded by a review of the authorities cited that Parliament and the Courts have each engaged in an effort to name as criminal conduct that conduct from which the community ought to be protected while avoiding the criminalization of similar conduct that does not represent the same peril or conduct which may be mistaken for or experienced as harassment but is in fact quite innocuous and well within the freedoms cherished in this society. As stated in LaFreniere, 'repeatedly' is clearly meant to define conduct that occurs more than once. This is not because the conduct presents less peril because it only occurs once. It is no comfort to a person being stalked that it is for the first time. It does not appear sensible, therefore, to interpret 'repeatedly' to require conduct occurring over and over again separated by any particular amount of time. Rather, I am persuaded the intended definition for the word 'repeatedly' in this context is its meaning that equates to persistently. When one assesses whether conduct falls within the definition of 'repeatedly,' one can guard against the criminalizing of innocuous behaviour by assessing the persistence of the behaviour, the context in which it is committed, and other factors that will assist in segregating criminal stalking from following a person in an annoying, irritating, perhaps even prolonged but not perilous manner."
¶ 18 Based on that quote, I am satisfied that the definition of "repeatedly" does not necessarily require conduct occurring over and over again separated by any particular amount of time. I am also satisfied that "repeatedly" can be equated with the word "persistently" depending on the context in which the behaviour is committed and other factors as referred to by the Ontario Court of Appeal; however, it is clear from the Ohenhen decision that one instance of unwanted conduct is not sufficient. The Court indicates at paragraph 31, "'Repeatedly' obviously means more than once but not necessarily more than twice."
¶ 19 They also indicate at paragraph 32 that: "[p]rovided the conduct occurs more than once, in my view, the actus reus can be made out."
¶ 20 Here, based on the findings of fact that I have made, there is only one instance of following — that is following from the Laurier Plaza to the Milton Police Station. As such, I am not satisfied that the conduct that has been proven falls within the definition of s. 264(2)(a), particularly as it involves the definition of "repeatedly following," and, as such, the charge is dismissed.