R. v. George (R.), 2002 YKCA 2

• Judge: Finch, C.J.B.C., Donald and Braidwood, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: January 15, 2002
• Jurisdiction: Yukon
• Citations: 2002 YKCA 2;(2002), 164 B.C.A.C. 29 (YukCA)

R. v. George (R.) (2002), 164 B.C.A.C. 29 (YukCA);

    268 W.A.C. 29

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. JA.055

Regina (respondent) v. Roy George (appellant)

(YU449; 2002 YKCA 2)

Indexed As: R. v. George (R.)

Yukon Court of Appeal

Finch, C.J.B.C., Donald and Braidwood, JJ.A.

January 30, 2002.

Summary:

The accused appealed his conviction for criminal harassment, contrary to s. 264(2)(d) of the Criminal Code.

The Yukon Court of Appeal allowed the appeal and entered an acquittal.

Criminal Law - Topic 1593

Offences against person and reputation - Criminal harassment - What constitutes - The accused walked up behind an ac­quaintance, a woman in her 20's with a learning disability, and offered her money to go for a walk with him - It was uncer­tain if he followed her after being rebuffed - The conduct occurred in a busy public area and was a brief encounter - He did not conceal his identity and his conduct was not persistent, repeated or continuous -There were no threatening gestures or eye contact - There was no background from which any adverse inference could be drawn - The Yukon Court of Appeal held that there was no threat in law designed to intimidate or instill a sense of fear - The accused was acquitted of criminal harass­ment.

Criminal Law - Topic 1594

Offences against person and reputation - Criminal harassment - Elements of offence - Threatening conduct - The Yukon Court of Appeal held that the element of "threat­ening conduct" in s. 264(2)(d) of the Criminal Code must amount to "a tool of intimidation which is designed to instill a sense of fear in the recipient" - The court saw no difference between defining a threat as a restraint on a person's freedom of action and an indication of something undesirable to come, or defining it as a tool of intimida­tion, designed to instill a sense of fear - Instilling a sense of some­thing undesirable to come was indeed engaging in an act designed to instill a sense of fear - Intimida­tion may occur as a result of restraining a person's ability to act - See paragraphs 39 to 41.

Evidence - Topic 9

General and definitions - What constitutes a "question of law" - The Yukon Court of Appeal stated that whether or not conduct amounted to a threat was a ques­tion of law - See paragraph 37.

Cases Noticed:

R. v. Clemente (V.F.), [1994] 2 S.C.R. 758; 168 N.R. 310; 95 Man.R.(2d) 161; 70 W.A.C. 161, refd to. [para. 34].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 35].

R. v. Lamontagne (1998), 129 C.C.C.(3d) 181 (Que. C.A.), refd to. [para. 38].

R. v. Kosikar (K.I.) (1998), 85 O.T.C. 241 (Gen. Div.), affd. (1999), 124 O.A.C. 289; 138 C.C.C.(3d) 217 (C.A.), leave to appeal dismissed (2000), 255 N.R. 199; 135 O.A.C. 197 (S.C.C.), refd to. [para. 40].

R. v. Ducey (W.J.) (1995), 134 Nfld. & P.E.I.R. 339; 417 A.P.R. 339 (Nfld. T.D.), affd. (1996), 142 Nfld. & P.E.I.R. 91; 445 A.P.R. 91 (Nfld. C.A.), refd to. [para. 49].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 264(1), sect. 264(2) [para. 1].

Counsel:

K.M. Eldred, for the appellant;

D. McWhinnie, for the respondent.

This appeal was heard before Finch, C.J.B.C., Donald and Braidwood, JJ.A., of the Yukon Court of Appeal, at Vancouver, British Columbia, on January 15, 2002. The decision of the court was delivered on Jan­uary 30, 2002, by Braidwood, J.A.