R. v. Ryback (C.W.), (1996) 71 B.C.A.C. 175 (CA)

• Judge: Legg, Finch and Newbury, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 15, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 71 B.C.A.C. 175 (CA);105 CCC (3d) 240;1996 CanLII 1833 (BC CA);47 CR (4th) 108;[1996] BCJ No 285 (QL);71 BCAC 175

R. v. Ryback (C.W.) (1996), 71 B.C.A.C. 175 (CA);

    117 W.A.C. 175

MLB headnote and full text

Regina (respondent) v. Craig William Ryback (appellant)

(CA020245)

Indexed As: R. v. Ryback (C.W.)

British Columbia Court of Appeal

Legg, Finch and Newbury, JJ.A.

February 15, 1996.

Summary:

The accused was convicted of criminal harassment (stalking) contrary to s. 264 of the Criminal Code. The accused appealed.

The British Columbia Supreme Court dismissed the appeal. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 8415

Canadian Charter of Rights and Freedoms - Criminal proceedings - Right not to be convicted where actions not an offence at time of actions - [See Criminal Law - Topic 1595 ].

Criminal Law - Topic 1594

Criminal harassment - Elements of offence - The accused was charged with criminal harassment respecting his conduct from December 1, 1993 to February 15, 1994 - He delivered presents (with a note) to the complainant at Christmas and a dinner invi­tation one week before Valentine's Day - He personally appeared at her door on Valen­tine's Day - The complainant had personally told the accused to his face to leave her alone - The police had warned him - The accused persistently and irra­tionally pursued the complainant for two years - He was a stranger - The accused frequently appeared at her workplace, parking outside and watching her - He repeatedly entered her place of employ­ment - He even called her father and, when told that the complainant was married, advised the father that he was the only one for her - The British Columbia Court of Appeal held that the trial judge did not err in finding that the three specific incidents relied on in the charge, in view of the circumstances of the accused's other conduct, constituted criminal harassment.

Criminal Law - Topic 1594

Criminal harassment - Elements of offence - An accused convicted of criminal ha­rassment (Criminal Code, s. 264) claimed that the trial judge erred in finding that he knowingly or recklessly harassed the com­plainant - Three specific acts of direct or indirect communication were relied on to constitute harassment - Additionally, other conduct was ruled admissible to determine the state of minds of the accused and the complainant - The complainant had told the accused once to his face to leave her alone - The police had warned the accused before the three incidents - The British Columbia Court of Appeal held that the trial judge did not err in finding that the accused "knowingly or recklessly" harassed the complainant - See paragraphs 36 to 42.

Criminal Law - Topic 1594

Criminal harassment - Elements of offence - An accused convicted of criminal ha­rassment (Criminal Code, s. 264) claimed that the trial judge erred in finding that his conduct amounted to "repeatedly com­mu­nicating" with the complainant, because there were only three communications with the complainant in the period covered by the charge - The British Columbia Court of Appeal stated that the three communi­cations must be viewed in their context - Here, the accused persistently and irration­ally pursued the complainant over a two year period - His behaviour gave the complainant cause for alarm - The court stated that "a common sense approach would clearly indicate that in the circum­stances of this case, three times should be construed as amounting to repeated com­munication" - See paragraphs 44 to 48.

Criminal Law - Topic 1595

Criminal harassment - Evidence and proof - Section 264 of the Criminal Code made it an offence to repeatedly communicate, directly or indirectly, with another person, knowing that the person was harassed or recklessly as to whether the person was harassed, such that the person reasonably feared for their safety - Section 264 was enacted on August 1, 1993 - The accused was charged respecting conduct between December 1, 1993 and February 15, 1994 - The trial judge admitted into evidence the accused's conduct prior to August 1, 1993, to determine the reasonableness of the victim's fear - The trial judge stated that conduct prior to August 1, 1993, was not relevant to whether the Crown proved the actus reus of the offence - The accused claimed that considering such evidence violated s. 11(g) of the Charter, because he was being found guilty for conduct that did not constitute an offence at law at the time - The British Columbia Court of Appeal held that the trial judge did not err - The precharge evidence was relevant to the context in which the offen­sive conduct occurred and to the states of mind of both the victim and the accused - See paragraphs 28 to 35.

Cases Noticed:

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47; 66 C.C.C.(3d) 517, refd to. [para. 31].

R. v. Sillipp (E.F.) (1995), 172 A.R. 174; 99 C.C.C.(3d) 394 (Q.B.), refd to. [para. 37].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(g) [para. 28].

Criminal Code, R.S.C. 1985, c. C-46, sect. 264 [para. 4].

Authors and Works Noticed:

Concise Oxford Dictionary [para. 36].

Dukelow, D.A., and Nuse, B., Dictionary of Canadian Law (1991) [para. 36].

Williams, Glanville, Criminal Law, The General Part (2nd Ed. 1961), pp. 575, 576 [para. 29].

Counsel:

Rod Holloway, for the appellant;

G.C. Deedman, for the respondent.

This appeal was heard on January 15, 1996, before Legg, Finch and Newbury, JJ.A., of the British Columbia Court of Appeal.

On February 15, 1996, Finch, J.A., delivered the following judgment for the Court of Appeal.