R. v. Davis (A.A.), (1999) 143 Man.R.(2d) 105 (QB)

• Judge: Beard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 10, 1999
• Jurisdiction: Manitoba
• Citations: (1999), 143 Man.R.(2d) 105 (QB);1999 CanLII 14505 (MB QB);143 Man R (2d) 105;71 CRR (2d) 340

R. v. Davis (A.A.) (1999), 143 Man.R.(2d) 105 (QB)

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. NO.028

Her Majesty The Queen v. Anthony Alvin Davis (accused)

(CR 99-01-20465)

Indexed As: R. v. Davis (A.A.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Beard, J.

November 10, 1999.

Summary:

The accused was charged with criminal harassment under s. 264(2)(b) of the Crimi­nal Code. The accused argued that he was not guilty of the offence. He also challenged the constitutional validity of s. 264(2)(b) of the Code, arguing that it violated his rights under ss. 2(b), 2(d) and 7 of the Charter.

The Manitoba Court of Queen's Bench rejected the constitutional challenge to the validity of s. 264(2)(b) and found the accused guilty.

Civil Rights - Topic 1842.3

Freedom of speech or expression - Limita­tions on - Anti-stalking legislation - The accused was charged with criminal harass­ment of a former girlfriend - The Crown alleged that the accused's conduct came within s. 264(2)(b) of the Criminal Code ("repeatedly communicating with, either directly or indirectly, the other person or anyone known to them") - The Crown conceded that the legislation violated the accused's right to freedom of expression as guaranteed by s. 2(b) of the Charter, but argued that it was saved by s. 1 of the Char­ter - The Manitoba Court of Queen's Bench held that the legislation was a rea­sonable limit prescribed by law as could be demon­strably justified in a free and demo­cratic society and was thereby saved by s. 1 of the Charter - See paragraphs 118 to 131.

Civil Rights - Topic 1842.3

Freedom of speech or expression - Limita­tions on - Anti-stalking legislation - [See Civil Rights - Topic 2100 ].

Civil Rights - Topic 2100

Freedom of association - General - The accused was charged with criminal harass­ment of a former girlfriend - The Crown alleged that the accused's conduct came within s. 264(2)(b) of the Criminal Code ("repeatedly communicating with, either directly or indirectly, the other person or anyone known to them") - The accused argued that s. 264(2)(b) violated his right to freedom of association as guaranteed by s. 2(d) of the Charter - The Manitoba Court of Queen's Bench stated that "the legislation does not prohibit contact or association by the accused with anyone. What it prohibits is a limited category of communication which meets certain cri­teria. The issue falls squarely under the guarantee of freedom of expression in s. 2(b) and ought properly to be resolved there" - See paragraphs 108 to 117.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - [See Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - Overbreadth principle - The accused was charged with criminal harassment of a former girlfriend - The Crown alleged that the accused's conduct came within s. 264(2)(b) of the Criminal Code ("repeatedly communicating with, either directly or indirectly, the other person or anyone known to them") - The accused argued that s. 264(2)(b) violated s. 7 of the Charter because the phrases "indirectly" and "anyone known to them" were vague or overly broad and because the mens rea requirement was not suffi­ciently clear - The accused also argued that the legislation was overly broad in its application - The Manitoba Court of Queen's Bench rejected the argument - See paragraphs 79 to 107.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See first Civil Rights - Topic 1842.3 ].

Criminal Law - Topic 1593

Offences against person and reputation - Criminal harassment - What constitutes - The accused was charged with criminal harassment in relation to his former girl­friend - The evidence relied upon was letters, e-mail messages and telephone calls from the accused to the complainant's family and friends and a communication by the accused with the pastor of the church attended by the complainant's parents - The Crown alleged that the ac­cused's conduct came within s. 264(2)(b) of the Criminal Code ("repeatedly com­municating with, either directly or indirect­ly, the other person or anyone known to them") - The Manitoba Court of Queen's Bench convicted the accused - The court was satisfied beyond a reasonable doubt that the accused repeatedly communicated directly with persons known to the com­plainant, that the complainant was harassed and was fearful for her safety, that her fear was reasonable and that the accused knew that the complainant was harassed or he was reckless as to whether she would be harassed - See paragraphs 39 to 77.

Criminal Law - Topic 1594

Offences against person and reputation - Criminal harassment - Elements of offence - The accused was charged with criminal harassment of a former girlfriend - The evidence relied upon was letters, e-mail messages and telephone calls from the accused to the complainant's family and friends and a communication with the pastor of the complainant's parents' church - The Crown alleged that the accused's conduct came within s. 264(2)(b) of the Criminal Code ("repeatedly communicating with, either directly or indirectly, the other person or anyone known to them") - The accused argued that the actus reus had not been proved with respect to the communi­cation with the pastor because there was only one communication, while the offence was that of "repeatedly communicating with" someone - The Manitoba Court of Queen's Bench held that s. 264(2)(b) did not require repeated communication with each individual - The communications were to be looked at as a group to see if the total number was sufficient to be con­sidered repeated - See paragraphs 45 to 46.

Criminal Law - Topic 1594

Offences against person and reputation - Criminal harassment - Elements of offence - The Manitoba Court of Queen's Bench summarized the elements of the offence of criminal harassment - See paragraphs 29 to 38.

Criminal Law - Topic 1595

Offences against person and reputation - Criminal harassment - Evidence and proof - The accused was charged with criminal harassment of a former girlfriend - The evidence relied upon was letters, e-mail messages and telephone calls from the accused to the complainant's family and friends and a communication with the pastor of the complainant's parents' church - The accused argued that the court should have a reasonable doubt with respect to the exact words spoken by the accused to the pastor because the pastor did not make a note of them and he testified as to the gist of the conversation rather than giving a verbatim report of the words used - The Manitoba Court of Queen's Bench held that the Crown did not have to prove the exact words spoken as one of the elements of the offence and it therefore did not have to be satisfied beyond a reasonable doubt as to the exact words spoken - See para­graph 47.

Criminal Law - Topic 1595

Offences against person and reputation - Criminal harassment - Evidence and proof - The accused was charged with criminal harassment in relation to his former girl­friend - The accused had pleaded guilty to criminal harassment on three prior occa­sions for incidents in relation to the com­plainant which were not the subject of the present charge - The Manitoba Court of Queen's Bench stated that "the accused's past conduct, pre-charge events and the history of the relationship between the parties is relevant and admissible (unless the judge finds that the prejudicial effect outweighs the probative value) to assist with a determination of whether the ac­cused's conduct as charged caused the complainant to be harassed, whether that conduct caused the complainant to be fearful and whether the complainant's fear was reasonable" - It was also relevant and admissible to a determination of the ac­cused's intent - See paragraphs 32 and 36.

Cases Noticed:

R. v. Sillipp (E.F.) (1997), 209 A.R. 253; 160 W.A.C. 253; 120 C.C.C.(3d) 384 (C.A.), leave to appeal denied (1998), 228 N.R. 195; 219 A.R. 107; 179 W.A.C. 107 (S.C.C.), refd to. [para. 30].

R. v. Ryback (C.W.) (1996), 71 B.C.A.C. 175; 117 W.A.C. 175; 105 C.C.C.(3d) 240 (C.A.), leave to appeal denied (1996), 204 N.R. 392; 84 B.C.A.C. 240; 137 W.A.C. 240; 107 C.C.C.(3d) vi (S.C.C.), refd to. [para. 30].

R. v. Lamontagne (1998), 129 C.C.C.(3d) 181 (Que. C.A.), refd to. [para. 30].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223, refd to. [para. 35].

R. v. Sillipp (E.F.) (1995), 172 A.R. 174; 99 C.C.C.(3d) 394 (Q.B.), refd to. [para. 38].

R. v. Gowing, [1994] O.J. No. 2743 (Gen. Div.), refd to. [para. 38].

R. v. Hau, [1996] B.C.J. No. 1047 (S.C.), refd to. [para. 38].

R. v. LaFreniere, [1994] O.J. No. 437 (Prov. Div.), refd to. [para. 38].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 74 C.C.C.(3d) 289; 15 C.R.(4th) 1; 43 C.P.R.(3d) 1; 93 D.L.R.(4th) 36; 10 C.R.R.(2d) 34, refd to. [para. 83].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1; 56 C.C.C.(3d) 65; 77 C.R.(3d) 1; [1990] 4 W.W.R. 481, refd to. [para. 90].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161; 120 D.L.R.(4th) 348; 94 C.C.C.(3d) 481, refd to. [para. 99].

Catholic Children's Aid Society of Metro­politan Toronto v. T.S. and C.S. et al. (1989), 33 O.A.C. 213; 69 O.R.(2d) 189 (C.A.), refd to. [para. 113].

R. v. Skinner, [1990] 1 S.C.R. 1235; 109 N.R. 241; 98 N.S.R.(2d) 181; 263 A.P.R. 181; 56 C.C.C.(3d) 1, refd to. [para. 115].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, appld. [para. 120].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193; [1991] 2 W.W.R. 1; 61 C.C.C.(3d) 1; 3 C.R.R.(2d) 193, refd to. [para. 130].

R. v. Lucas (J.D.) et al., [1998] 1 S.C.R. 439; 224 N.R. 161; 163 Sask.R. 161; 165 W.A.C. 161; 123 C.C.C.(3d) 97, refd to. [para. 130].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 264 [para. 29].

Authors and Works Noticed:

New Webster Encyclopedic Dictionary of the English Language [para. 89].

Counsel:

Colleen A. McDuff and Cynthia A. Dev­ine, for the Crown;

Steven W. Brennan and Jill K. Duncan, for the accused.

This case was heard before Beard, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing decision on November 10, 1999.