R. v. Krushel (M.) et al., (2000) 130 O.A.C. 160 (CA)

• Judge: Catzman, Carthy and Weiler, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 10, 2000
• Jurisdiction: Ontario
• Citations: (2000), 130 O.A.C. 160 (CA)

R. v. Krushel (M.) (2000), 130 O.A.C. 160 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. FE.034

Her Majesty the Queen (respondent) v. Melvin Krushel (appellant) and The Attorney General of Canada (intervener)

(C23193)

Her Majesty the Queen (respondent) v. Fabian Martin Connors (appellant) and The Attorney General of Canada (intervener)

(C28591)

Her Majesty the Queen (respondent) v. Seymour Grey (appellant) and The Attorney General of Canada (intervener)

(C30481)

Indexed As: R. v. Krushel (M.) et al.

Ontario Court of Appeal

Catzman, Carthy and Weiler, JJ.A.

February 10, 2000.

Summary:

A judge convicted the three accused of criminal harassment. All three appealed their convictions. Two accused also appealed against their sentence.

The Ontario Court of Appeal dismissed the appeals.

Civil Rights - Topic 660.5

Liberty - Limitations on - Anti-stalking legislation - An accused found guilty of criminal harassment argued on appeal that s. 264 of the Criminal Code (also known as the anti-stalking law) infringed s. 7 of the Charter for two reasons: (1) s. 264 was impermissibly vague in that it failed to give sufficient notice of what conduct was prohibited; and (2) it allowed 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 Ontario Court of Appeal rejected the argument and dismissed the appeal - See paragraphs 6 to 11.

Civil Rights - Topic 1842.3

Freedom of speech or expression - Limita­tions on - Anti-stalking legislation - An accused found guilty of criminal harass­ment argued on appeal that s. 264 of the Criminal Code violated the right to free­dom of expression guaranteed by s. 2(b) of the Charter - The accused claimed that the behaviour criminalized under s. 264 consti­tuted "expression" within the meaning of s. 2(b) - Thus, besetting or watching a dwell­ing house for the purpose of conveying meaning was a protected form of expres­sion regardless of the meaning so ex­pressed - The Ontario Court of Appeal dismissed the appeal - The court was prepared to assume that the right of free­dom of expression was engaged by s. 264 but that the forms of expression allegedly infringed by s. 264 had to be at "the low end of the scale" hence the application of s. 1 of the Charter - See paragraphs 12 to 14.

Criminal Law - Topic 1592

Criminal harassment - Intention or mens rea - [See Civil Rights - Topic 660.5 ].

Criminal Law - Topic 1595

Criminal harassment - Evidence and proof - The trial judge admitted evidence relating to the accused's conduct for a period prior to the period specified in the indictment - This evidence was admitted "for the sole purpose of showing the state of mind of the complainant during the period set forth in the indictment" - The Ontario Court of Appeal affirmed the decision - See para­graphs 16, 17 and 26.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening of trial to hear additional evidence - Charged with criminal harassment, an accused who did not testify at his trial was convicted - Before he was sentenced, the accused moved to reopen the trial to per­mit him to give evidence - The trial judge denied the motion - The judge ob­served that such relief should be granted only in exceptional circumstances - He noted that all of the evidence that the accused 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 - The Ontario Court of Appeal agreed - See paragraphs 21 to 24.

Criminal Law - Topic 5833

Sentencing - Considerations - Deterrence - [See Criminal Law - Topic 5969 ].

Criminal Law - Topic 5847

Sentencing - Considerations - Remorse of accused - [See Criminal Law - Topic 5969 ].

Criminal Law - Topic 5969

Sentence - Criminal harassment - The two accused were convicted of criminal harass­ment - The first accused's victim was his former common law wife - The second accused's victim was his former wife - In sentencing the accused, the trial judge took into account the need for general and specific deterrence and the accused's lack of remorse - The judge sentenced the first accused to 90 days' imprisonment to be served intermittently plus two years' pro­bation - The second accused was sentenced to four months in jail and three years' probation - The Ontario Court of Appeal affirmed the sentences - See paragraphs 2, 3, 31 and 32.

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 refused (1998), 228 N.R. 195; 219 A.R. 107; 179 W.A.C. 107 (S.C.C.), consd. [para. 7].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 346; 105 D.L.R.(4th) 632; 23 C.R.(4th) 189; 17 C.R.R.(2d) 1, refd to. [para. 9].

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109; 95 D.L.R.(4th) 595; 76 C.C.C.(3d) 124; 15 C.R.(4th) 66; 11 C.R.R.(2d) 193, refd to. [para. 9].

R. v. Sillipp (E.F.) (1995), 172 A.R. 174; 99 C.C.C.(3d) 394 (Q.B.), consd. [para. 10].

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, refd to. [para. 13].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241; 71 D.L.R.(4th) 68, refd to. [para. 14].

R. v. Hau, [1996] B.C.J. No. 1047 (S.C.), refd to. [para. 17].

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 refused (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. 17].

R. v. S.B., [1996] O.J. No. 1187 (Gen. Div.), refd to. [para. 17].

R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340; 1 C.R.(4th) 285; 61 C.C.C.(3d) 385, refd to. [para. 22].

Goodman v. Rossi (1995), 83 O.A.C. 38; 24 O.R.(3d) 359 (C.A.), refd to. [para. 22].

R. v. Kosikar (K.I.) (1998), 85 O.T.C. 241 (Gen. Div.), affd. (1999), 124 O.A.C. 289; 178 D.L.R.(4th) 238 (C.A.), refd to. [para. 26].

Statutes Noticed:

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

Counsel:

Daniel Kleiman and Paul Calarco, for the appellant, Krushel;

Fabian Martin Connors, appellant, in per­son;

Seymour Grey, appellant, in person;

Gary Trotter and Laurie Lacelle, for the respondent;

Jeffrey Kehoe, for the intervener;

Marie Henein, amicus curiae.

This appeal was heard on September 13-15, 1999, by Catzman, Carthy and Weiler, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on February 10, 2000, by Catzman, J.A.