WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

486.4(1)         Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       any
    of the following offences;

(i)         an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)        any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)       REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)       two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in paragraph (a).

(2)       In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)       at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the victim of the right to make an application for the order; and

(b)       on
    application made by the victim, the prosecutor or any such witness, make the
    order.

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)       In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)       An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)         Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)        For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. S.M., 2017 ONCA 878

DATE: 20171120

DOCKET: C63543

Strathy C.J.O., Doherty J.A. and McCombs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

S.M.

Respondent

Nancy Dennison, for the appellant

William Thompson and Samara Secter, for the respondent

Heard: November 8, 2017

On appeal from acquittals entered by Justice Robert T.
    Knott of the Ontario Court of Justice on March 2, 2017.

REASONS FOR DECISION

[1]

The respondent was charged with sexual assault and related offences.  The
    trial judge acquitted on all counts.  The Crown appeals.

[2]

E.M., the complainant,
described two sexual assaults
    committed by the respondent, her biological father.  The incidents allegedly
    occurred about two weeks apart, some 10 or 11 years earlier when E.M. was 10 or
    11 years old.

[3]

On the evidence, E.M. and the respondent had no
    relationship for the first 10 years of E.M.s life.  Eventually, she learned of
    her father and was introduced to him.  Her mother arranged for E.M. to spend
    time with the respondent on alternate weekends over several weeks.  E.M.
    testified that she was sexually assaulted on two separate occasions during those
    visits.

[4]

There was uncertainty in the evidence, explained in
    part by the fact that the relevant events occurred about 11 years earlier,
    about the timing of the various visits by E.M. to the respondent, and the overall
    time period during which those visits occurred.

[5]

E.M. testified that both sexual assaults
occurred after her birthday, which was January 12
th
when she turned
    11, but before the respondent suffered a serious eye injury, requiring him to
    wear a patch over one eye.  Independent evidence showed that the respondent
    suffered the eye injury on January 6, 2006.  Consequently, the sexual assaults
    could not have occurred before the eye injury on January 6
th
, but
    after E.M.s birthday on January 12
th
.  This part of E.M.s evidence
    was clearly wrong.

[6]

The respondent did not testify.

[7]

On appeal, the Crown and the respondent agree that
    E.M.s evidence placing the alleged assaults between the date the respondent
    suffered an eye injury and her 11th birthday could not have been accurate.
    Both also agree that this feature of E.M.s evidence had to be taken into
    account in assessing the overall reliability of her evidence.  The respondent
    argued that this was a crucial feature of E.M.s evidence that spoke strongly
    against the reliability of her evidence.  The trial judge understood this
    submission and took this aspect of E.M.s evidence into account in assessing
    the reliability of her evidence (see reasons, at p. 16).

[8]

The Crown submits, however, that the trial judge went
    further than using this part of E.M.s evidence in assessing the reliability of
    her testimony.  The Crown argues that the trial judge treated the timeframe
    alleged in the indictment (and later amended) as an essential element of the
    offence, essentially part of the
actus reus
, to
    be proved beyond a reasonable doubt.

[9]

At least three comments in the trial judges reasons support the Crowns
    position that the trial judge did treat the time within which the offences occurred
    as an essential element of the offence (see reasons, at pp. 2, 13 and 19).  For
    example, at p. 19, the trial judge said:

I cannot, with any certainty, and certainly
    not beyond a reasonable doubt, say [in] what timeframe the incident could have occurred.

[10]

As a general rule, the Crown is not required to
    prove beyond a reasonable doubt that the alleged offence occurred within the
    timeframe set down in the indictment: see
R. v. B. (G.)
(1990), 56 C.C.C. (3d) 200, at 215-16 (SCC);
Criminal
    Code
, s. 601(4.1).

[11]

There is nothing inherent in the nature of the charges
    brought against the respondent that would make the time at which those offences
    occurred an essential element of the offence.  For example, this is not a case
    in which the evidence raised the possibility that if the acts were committed at
    a certain time, they were no longer criminal because of the age of the
    complainant.  The conduct alleged in this case remained criminal regardless of
    when it occurred.

[12]

The respondent contends that this case falls
    within that category of cases in which fairness to the accused demands that the
    Crown be required to prove that the offence occurred within the timeframe
    alleged in the indictment.  Broadly speaking, these are cases in which an
    accused can demonstrate a prejudice to his or her ability to properly defend
    the case flowing from the Crowns attempt to prove that the offences occurred
    at some time outside of the time period alleged in the indictment.

[13]

We do not accept that the respondent was
    prejudiced in the relevant sense by a finding that the assaults occurred
    outside of the timeframe alleged in the indictment.  The respondent had clear
    notice of the legal and factual nature of the allegations and the factual
    context in which they were said to have occurred.  The Crown maintained that
    the respondent sexually assaulted his daughter on two occasions during the
    weekend visits that occurred on alternate weekends over several weeks.  The
    actual dates of the alleged offences, or the timeframe within which they
    occurred, added nothing that would assist the respondent in identifying the
    allegations.

[14]

Nor did the timeframe have anything to do with
    the defence advanced by the respondent.  Although the respondent did not
    testify, it was the defence position that the alleged assaults did not occur
    and that E.M. was not a reliable witness.  That defence in no way depended on,
    or took its shape from, the timing of the alleged sexual assaults.

[15]

This is not a case in which an accused advanced
    an alibi-like defence in response to the timeframe alleged by the Crown in the
    indictment, only to have the Crown argue for a conviction based on events
    outside of the timeframe.  There is simply no reason to think that the defence
    advanced here hinged in any way on the timeframe alleged in either the original
    indictment or the amended indictment.

[16]

In a related argument, the respondent argues
    that he was prejudiced by the amendment to the indictment at the end of the
    Crowns case.  The Crown appreciated that the complainants evidence as to the
    timeframe could not be correct.  For reasons that are not entirely clear, the Crown
    sought to amend the indictment to limit the timeframe alleged to the period
    before the respondent suffered his eye injury.  The trial judge amended the
    indictment.

[17]

The respondent argues that the Crown effectively
    elected to narrow the allegation and that the defence is entitled to rely on
    that election in defending against the charge.

[18]

This argument is essentially a reformulation of
    the unfairness argument.  The question remains  can the respondent demonstrate
    any unfairness to the defence should the Crown be allowed to rely on events
    outside of the timeframe alleged in the indictment as amended?  As pointed out
    above, the defence did not turn on the timeframe in the indictment.  It turned
    on the reliability of E.M.s evidence.  Neither the substance of the
    respondents argument that her evidence was unreliable, nor the potential force
    of that argument, was affected by the amendment to the indictment.  Whatever
    the timeframe alleged in the indictment, it was clear that E.M.s recollection
    as to when the alleged assaults occurred was in error.  The impact of that
    error on the reliability of her evidence had nothing to do with the timeframe
    alleged in the indictment.

[19]

We are satisfied that the Crown did not have to
    prove that the alleged offences occurred within the timeframe alleged in the
    indictment.  Having regard to the reasons as a whole, we conclude that the
    trial judge did treat the timeframe alleged in the indictment as an essential
    element of the offence.  The final words in his reasons make that clear:

I cannot say that the incidents occurred
    between November 25, 2005 and January 5, 2006.  The accused will be found not
    guilty.

[20]

The trial judge erred in law in requiring the
    Crown to prove beyond a reasonable doubt that the offences occurred within the
    timeframe alleged in the indictment.  The error was crucial.  The trial judge expressed
    concerns about the reliability of E.M.s evidence.  The concerns were based in
    part on her clearly erroneous recollection of when the offences occurred.  The
    trial judge did not, however, come to any conclusion as to the reliability of E.M.s
    evidence, but instead wrongly decided the case on the ground that the Crown had
    failed to prove beyond a reasonable doubt that the offence occurred within the
    timeframe alleged in the indictment.  It may well be that a trial judge would
    find E.M.s evidence sufficiently reliable to satisfy the Crowns burden of
    proof.  There must be a new trial on all charges.

[21]

The appeal is therefore allowed and a new trial
    ordered.

G.R. Strathy C.J.O.

Doherty J.A.

D. McCombs J.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the
Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read from time to time before the day on which this subparagraph
    comes into force, if the conduct alleged would be an offence referred to in
    subparagraph (i) if it occurred on or after that day; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or
    the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community
.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sahdev, 2017 ONCA 900

DATE: 20171123

DOCKET: C62080

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jitender Krishan Sahdev

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Kathleen Farrell, for the respondent

Heard: August 29, 2017

On appeal from the order of Justice Andrew J. Goodman of
    the Superior Court of Justice, dated February 25, 2014, and from the convictions
    entered by Justice A. Duncan Grace of the Superior Court of Justice, sitting
    without a jury, on December 11, 2015.

Trotter J.A.
:

A.

introduction

[1]

Jitender Sahdev, the appellant, was trained as a surgeon in India. Because
    he was not qualified as a doctor in Canada, he opened a massage and yoga studio
    with his wife. He was charged with sexually assaulting two female massage
    clients.

[2]

The Crown wanted the charges tried together. The appellant wanted separate
    trials. Well before his trial date, the appellant applied for severance. The
    application judge, who was then assigned to be the trial judge, dismissed the application.
    He promised to deliver written reasons at a later date, but never did so. As it
    turned out, a different judge conducted the trial. The trial judge found the
    appellant guilty on both counts.

[3]

The appellant challenges his convictions on several grounds. I am not
    persuaded that the trial judge committed any errors. However, in my view, the appeal
    must be allowed and a new trial ordered because the application judges failure
    to provide reasons for refusing severance frustrates meaningful appellate
    review.

B.

the severance application

[4]

The offences for which the appellant was convicted occurred on June 11
    and 12, 2012. The appellant was originally charged in separate Informations. An
    Information containing both counts was subsequently sworn. Following committal
    to stand trial, an indictment was preferred that contained both counts.

[5]

The appellant originally elected to be tried by judge and jury. On
    February 21, 2014, more than a year and half before trial, he re-elected to be
    tried by a judge sitting alone. On the same day, he applied for severance.

[6]

In materials filed before the application judge, defence counsel (not
    Mr. Halfyard or Ms. Vandebeek) contended that there was a likelihood that the
    appellant would testify in relation to one of the complainants (N.P.), but a
    substantially lesser likelihood that he would testify in relation to the
    other (A.W.). The trial Crown (not Ms. Farrell) argued that the appellants
    proposal to testify in relation to just one count was not realistic.

[7]

Until this point in the proceedings, the Crown had considered bringing a
    cross-count, similar fact evidence application. During the severance
    application, the Crown advised that it might also call three other women as
    similar fact witnesses. Overall, the Crown was non-committal on the similar
    fact issue, and said it would make a firm decision at trial. Defence counsel
    conceded that, if the application judge determined that it was likely that the similar
    fact application should succeed, then the application for severance would
    fall.

[8]

The application judge adjourned the case to February 25, 2014, for my
    oral decision on the severance application. On that date, he said:

As I mentioned, written reasons to follow during the course of
    the judgment in this case. Having reviewed the material, the submissions of
    counsel, and for written reasons to follow, the application for severance is
    dismissed.

As previously noted, the application judge did not
    conduct the trial, nor did he release reasons on the severance application.

C.

the proceedings at trial

(1)

Introduction

[9]

The trial commenced 20 months later before a different judge. Although
    reasons for refusing the severance application were still outstanding, defence
    counsel did not renew the application before the trial judge.

[10]

Both
    complainants testified, as did the appellant and his wife, along with a couple
    of other massage and yoga clients. The three additional similar fact witnesses
    mentioned by the Crown on the severance application did not testify.

[11]

The
    events took place at the premises of Savy International (Savy), the massage
    and yoga studio operated by the appellant and his wife in London, Ontario. The
    two complainants, A.W. and N.P., came to the studio in similar circumstances  both
    purchased discounted massage coupons on a website called Dealfind. A.W.
    received her massage on June 11, 2012; N.P. had hers on June 12, 2012.

(2)

The Evidence Concerning N.P.

[12]

N.P.
    was 25 years old at the time. During her massage, N.P. was naked, but under a
    draping sheet. She testified that, as the appellant massaged her thighs, his
    fingers lightly grazed her vagina. He also massaged her breasts and briefly put
    his thumbs on her nipples. The appellant then massaged her outer labia with
    both hands. N.P. complained that she was in pain because she had a clitoral
    abscess. The appellant told her she did not. He massaged her clitoris. N.P.
    verbalized her discomfort, but he applied pressure in the area for five to six
    minutes. He stopped because she continued to complain of pain. The appellant
    then kissed N.P. on the mouth three times until she turned her head away.

[13]

N.P.
    testified that, after the massage was finished, she calmed herself and quickly
    left the premises. She got into her car, screamed loudly, and then called her
    boyfriend. Her boyfriend called the police, and N.P. spoke to them that same
    night.

[14]

The
    appellant testified and denied touching N.P.s breasts or vagina. As the
    massage progressed, N.P. told him that she experienced pain in her breast and
    from a clitoral abscess. The appellant said he was offended because N.P. had
    failed to note these issues on the intake form she completed upon her arrival
    at Savy. According to the appellant, having learned of his medical training
    from his website, N.P. asked him to examine her breast. The appellant declined
    and told her to consult a doctor. Later in the massage, and again because of
    the appellants training as a surgeon, N.P. asked him to examine the abscess on
    her clitoris. He refused, advising her that he did not have the necessary tools
    and was not qualified in Canada. The appellant encouraged N.P. to sign up for a
    trip that he was organizing to a yoga retreat in India. If she came along, the
    appellant said he would introduce her to doctors who could examine her clitoral
    abscess. N.P. denied asking the appellant to examine her breast or her
    clitoris. She said there was no discussion of yoga or treatment in India.

[15]

The
    defence called the appellants wife and another Savy client to suggest that
    nothing untoward happened during N.P.s massage. Both witnesses saw N.P. leave
    the premises after the massage. She appeared to be fine. Ms. Sahdev said that N.P.
    smiled and said the massage was lovely. The client said that N.P. looked like
    a normal person and did not look angry or upset. The client did not hear any
    unusual sounds (i.e., screaming) coming from the parking lot.

[16]

The
    trial judge accepted most of N.P.s evidence, although he did not accept that
    the appellant massaged her vaginal area for as long as she claimed. The trial
    judge rejected the appellants evidence on this count. He variously described
    it in the following ways: defies belief; makes no sense; not believable;
    nothing short of incredible and wholly unbelievable; unfathomable; and a
    figment of Mr. Sahdevs imagination.

(3)

The Evidence Concerning A.W.

[17]

A.W.,
    who was 27 years old, came to Savy on June 11, 2012. She completed the intake
    form and indicated that she suffered from multiple sclerosis and had tension
    and soreness in her back and neck. She anticipated receiving a relaxing back,
    shoulder, and neck massage.

[18]

A.W.
    went into the massage room and removed her upper clothing and climbed under the
    sheet. When the appellant entered, he noticed that she was wearing pants and
    instructed her to remove them. He left the room while she did so. A.W. thought
    this request was a little strange, but she complied. She consented to a full
    body massage. When the appellant returned, A.W. was covered with a draping
    sheet.

[19]

The
    massage commenced with A.W. on her stomach. The draping sheet either fell or
    was pulled off of her at some point during the session. As the appellant was
    massaging her left side, he massaged A.W.s buttocks for 10 to 15 seconds and
    spread her buttocks apart with his thumbs. A.W. clenched, indicating her discomfort.
    The appellant told her to relax and to let him do his job. While massaging her
    right side, the appellant did not massage her buttocks again. However, his
    fingers ventured into her inner thigh, near her vagina.

[20]

When
    A.W. was on her back, the appellant briefly massaged her breasts, without
    touching her nipples. He then worked his way down her body and applied pressure
    to the top of her pubic area, but did not touch her vagina.

[21]

When
    the massage was over, A.W. dressed and left the premises quickly. She told the
    appellant that she would book her next appointment online. She had no intention
    of doing so. A.W. did not complain for a few days, and only after seeing a
    press release following N.P.s complaint.

[22]

The
    appellant testified that, when A.W. arrived, he told her that he could not
    honour her coupon because it was issued in the name of her boyfriend. She was
    told that she would have to pay for her session but could use the coupon at
    another time. A.W. agreed.

[23]

The
    appellant took A.W. to the massage room and told her she could keep on all of
    her clothing. He said he reminded her of this again. The appellant helped her
    onto the table. He put a draping sheet over her, even though she was fully
    clothed. He said he did this as a matter of courtesy. The appellant testified
    that the massage proceeded normally and that he did not touch her breasts,
    buttocks, or her vaginal area. The appellant testified that A.W. said that the
    massage was the best she had ever received. However, when it was over, she said
    she could not pay at that time and promised to return the next day to pay. She
    never did.

[24]

The
    appellants wife said that, as she was readying the room for A.W.s massage,
    she heard her husband tell A.W. that she could remain fully clothed.

[25]

On
    June 28, 2012, Dealfind advised the appellant that a refund had been
    requested for the voucher presented by A.W. On July 4, 2012, the appellant was
    arrested for sexually assaulting A.W.

[26]

The
    trial judge identified shortcomings in A.W.s evidence that troubled him. He
    attributed them to her failure to review her videotaped police interview.
    Nevertheless, he accepted A.W.s evidence in general.

[27]

The
    trial judge rejected the appellants evidence. He found that the appellants
    seemingly encyclopaedic memory of A.Ws massage session was contrived. He
    rejected Ms. Sahdevs evidence about hearing her husband tell A.W. that she could
    remain fully clothed as particularly improbable. He rejected the appellants
    evidence about draping a fully clothed client as incredible. The trial judge
    said: Bluntly, I do not believe either Mr. or Ms. Sahdev.

(4)

The Similar Fact Application

[28]

At
    the conclusion of the evidence, the Crown applied to have the evidence of each
    complainant used as similar fact evidence in relation to the other. Defence
    counsel resisted the application.

[29]

In
    his reasons for judgment, the trial judge assessed the evidence in relation to
    each charge separately and determined that guilt had been proved beyond a
    reasonable doubt. He concluded his reasons by saying: Because of my
    conclusions, it is unnecessary to rule on the Crowns similar fact
    application.

D.

issues on appeal

[30]

The
    appellant argues that he is entitled to a new trial because the application
    judge failed to provide reasons for refusing severance, thereby frustrating
    meaningful appellate review. He further submits that the trial judge subjected
    his evidence to a higher level of scrutiny than the complainants. Finally, the
    appellant contends that the trial judge erred in the manner that he treated
    N.P.s immediate complaint to the police.

[31]

As
    stated at the outset of these reasons, I would allow the appeal on the
    severance issue. The other grounds have no merit.

E.

analysis

(1)

Severance and the Failure to Give Reasons

[32]

Counsel
    on appeal made inquiries to determine whether the application judge had
    delivered, or would be delivering, reasons. There was no indication that
    reasons were forthcoming. This court made its own inquiries, yielding identical
    results.

[33]

The Crown properly concedes that
the application
    judge erred in law by failing to provide reasons for his decision: see
R.
    v. Sliwka
, 2017 ONCA 426, 38 C.R. (7th) 115, at para. 2; and
R. v.
    Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 25. The application
    judges announcement of his decision to deny severance does not constitute
reasons that in any way explain that decision or expose it to proper
    appellate review:
Sliwka
, at para. 30. See
    also
R. v. Frost
,
2010
ONCA 494,
    at para. 2.

[34]

A
ppellate courts must look
    beyond the absence of reasons and determine whether the rationale for the
    decision under review may be evinced from the record as a whole: see
Sheppard
, at paras. 25-33, 46; and
Sliwka
, at
    para. 25. It is not apparent from the record why the application judge decided
    the issue in the manner that he did.

[35]

Having conceded the error, the Crown submits
    that the
curative proviso
in s. 686(1)(b)(iii)
    of the
Criminal Code
, R.S.C. 1985, c. C-46,
    should be applied. Citing
R. v. Aalami
, 2017
    ONCA 624, at para. 18, Ms. Farrell argues that,
[i]t is open to this
    court to determine itself whether the counts should have been severed (and therefore
    whether the trial that followed was fair), based on the record before it.

[36]

In making this submission, the Crown also draws upon the standard
    of review applicable to severance decisions. In
R. v. Savoury
(2005),
    200 C.C.C. (3d) 94 (Ont. C.A.), Doherty J.A. wrote, at para. 26:

The trial judge's decision to refuse severance
    was an exercise of her discretion. Like any other discretionary decision, the
    trial judge's refusal to grant severance is entitled to deference:
R.
    v. Litchfield
(1993), 86 C.C.C. (3d) 97 at
    113-114 (S.C.C.). This court will interfere with the exercise of that
    discretion where the trial judge had failed to consider the relevant
    principles, or has considered an irrelevant principle.
If the trial judge has erred in principle, it falls to this
    court to decide, according to the proper principles, whether severance should
    have been granted.
Even if a trial judge has considered
    the relevant principles, this court will review the trial judge's exercise of
    her discretion against a reasonableness standard. [Emphasis added.]

See also
R. v. Jeanvenne
, 2010 ONCA 706, 270 O.A.C. 22, at para. 31; and
R. v.
    Last
, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 21.

[37]

Pulling
    these strands of s. 686(1)(b)(iii) and
Savoury
together, the Crown
    argues that this court should treat the lack of reasons in the same way as an
    erroneous severance decision, and then go on to determine whether severance
    should have been granted.

[38]

I would decline to decide the case on this basis. It would involve
    deciding the severance issue afresh, without any foundation other than the bare
    conclusion of the application judge. This is a fundamentally different exercise
    than attempting to evince reasons from the record. We are essentially being
    asked to reverse-engineer the application judges bottom line conclusion to
    deny severance. This is not the role cast for an appellate court when reasons
    have not been provided. This limit is recognized in
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, in which Charron J. wrote the
    following, at para. 32:

This exercise is not an invitation to
    appellate courts to engage in a reassessment of aspects of the case not
    resolved by the trial judge. Where the trial judge's reasoning is not apparent
    from the reasons or the record, as in the instant case, the appeal court ought
    not to substitute its own analysis for that of the trial judge (
Sheppard
, at paras. 52 and 55).

See also
R. v. Capano
, 2014 ONCA 599, 314 C.C.C. (3d) 135, at paras. 52 and 74. As this
    court said in
Frost
, at para. 2: It is not
    for this court to make findings of fact that are necessary for the
    determination of the presenting legal issues.

[39]

Acceding
    to the Crowns request would involve overshooting the limits of
Dinardo
in not just one, but two respects. This is because, embedded in the severance
    decision, is a similar fact evidence application. Because the application judge
    failed to deliver written reasons, this court does not have the benefit of his
    appraisal of the potential merits of this application. In fairness to the
    application judge, the Crown was non-committal on this issue. In the
    circumstances, the application judge may have given this factor minimal weight.
    But without reasons, we are left to guess.

[40]

The
    issue is further complicated by what happened at trial. For perfectly
    legitimate reasons, the trial judge determined that he did not need to consider
    the similar fact application. He evaluated the evidence on each count
    separately.

[41]

This combination of circumstances, involving a decision without
    reasons on one issue (severance), coupled with no decision on the other
    (similar fact evidence), presents serious challenges for appellate review. Both
    are discretionary decisions attracting deference on appeal. In the case of
    severance decisions, see
R. v. Litchfield
, [1993] 4 S.C.R. 333, at p. 354;
    and
Savoury
, at para. 26. For similar fact rulings, see
R. v. B.
    (C.R.)
, [1990] 1 S.C.R. 717, at p. 738;
R. v.
    Arp
, [1998] 3 S.C.R. 339, at para. 42;
R. v.
    Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73;
    and
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R.
    908, at para. 153.

[42]

In
    all of the circumstances, I have concluded that this is not an appropriate case
    for this court to decide these two issues afresh. Regrettably, these issues
    must be resolved at a new trial.

[43]

I
    appreciate the repercussions of deciding the case on this basis. The
    appellants trial was a model of fairness. As I explain below, the trial judge
    made no errors in conducting the trial. However, severance is not a minor or
    technical matter; it is a critical procedural decision, governed by the
    interests of justice:
Litchfield
, pp. 349-350.

[44]

The
    appellant was entitled to know why it was not in the interests of justice
    (see s. 591(3) of the
Criminal Code
) to conduct two short trials
    instead of one slightly longer trial. In order to meaningfully review the
    application judges decision not to order severance, this court requires
    considered reasons for making this discretionary decision, reasons that would
    have included at least some preliminary assessment of the similar fact evidence
    issue. Without reasons on either issue, this court is required to start from
    scratch, contrary to the proscription in
Dinardo.

[45]

The
    Crown relies on the decision of this court in
Aalami
, in which the
    trial judge failed to provide reasons for dismissing an application under s.
    11(b) of the
Charter
. This court determined that there was no need for
    a new trial because it was able to explain the result to the parties: at
    para. 18, citing
Sheppard
, at para. 55. The court applied the
    presumptive guidelines established in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631 and dismissed the appeal.

[46]

The
    test for severance is not so straightforward or self-applying. It is highly
    discretionary and requires a balancing of numerous factors. In
Last
,
    the Supreme Court of Canada articulated the factors to be considered. As
    Deschamps J. wrote, at para. 18:

The factors identified by the courts are not
    exhaustive. They simply help capture how the interests of justice may be served
    in a particular case, avoiding an injustice. Factors courts rightly use
    include:
the general prejudice to the accused
; the
legal and factual nexus between
    the counts
; the complexity of the evidence;
whether the accused intends to testify on one count but not
    another
; the possibility of inconsistent verdicts;
the desire to avoid a multiplicity of proceedings
;
the use of similar fact evidence at
    trial
; the length of the trial having regard to the
    evidence to be called; the potential prejudice to the accused with respect to
    the right to be tried within a reasonable time; and the existence of
    antagonistic defences as between co-accused persons. [Citations omitted; emphasis
    added.]

[47]

A number of the underscored factors in this
    passage were in play in this case. Some pointed in the direction of a single
    trial, such as the legal and factual nexus between counts, along with the
    desire to avoid a multiplicity of proceedings. Moreover, and while not
    mentioned in
Last
, the fact that the appellant
    ultimately elected trial by judge alone may have gone some way to ameliorating
    any prejudice involved in a joint trial.

[48]

Some of the other
Last
factors were more contentious  the proposed use of similar fact
    evidence and the appellants stated desire to testify only in relation to the
    N.P. count. Realistically, both of these issues had to be addressed in order to
    properly decide the severance issue.

[49]

As the Court held in
Last
, the admission of similar fact evidence will favour a joint trial.
    However, assessing the viability of a similar fact application on a severance
    application can be tricky, given that the burden to achieve severance is on the
    defence, while the burden to admit similar fact evidence is on the Crown. The
    exercise must be approached with great care: see
Last
, at para. 33;
Arp
, at para. 52;
    and
R. v. Waudby
, 2011 ONCA 707, at para. 4.

[50]

The Crown was reticent to fully argue the
    similar fact issue before the application judge. Moreover, the factual basis of
    the similar fact application had changed dramatically by the time the trial commenced
    20 months later. The three non-complainant witnesses did not testify at trial.
    This shift in position was not necessarily fatal to the correctness of the
    decision to refuse severance. However,

the application judges views on this issue, and the extent to which
    he relied on the possibility of the three additional witnesses testifying,
    would be important in reviewing his decision.

[51]

The viability of the similar fact application
    impacted on the appellants desire to testify only in relation to N.P. Counsel
    for the appellant told the application judge that the case for severance would
    dissolve if the similar fact application were to be allowed. In these
    circumstances, the appellant would not benefit from separate trials; he would
    be required to confront the testimony of both complainants in either scenario. Without
    an indication as to the viability of the similar fact application, it is
    difficult to evaluate the reasonableness of the appellants stated intention to
    testify in relation to just one of the counts.

[52]

As stated above in para. 6, the application judge
    was advised that there was a likelihood that the appellant would testify on
    the N.P. count but a substantially lesser likelihood that he would testify in
    relation to A.W. These are rather tentative expressions. Similar language was
    used in
Last
, which the trial judge in that
    case found to be too vague to be taken seriously, at para. 22. However, an
    accused person is not required to commit to a course of action in advancing a
    defence. As Deschamps J. stated, at para. 26:

However, while a formulaic expression of a
    subjective intention is not sufficient in and of itself to discharge the
    accused's burden to have the counts severed,
the
    trial judge should not substitute his or her own view for that of the accused
    and determine that the accused should testify or not. Rather, the trial judge
    must simply satisfy him- or herself that the circumstances objectively
    establish a rationale for testifying on some counts but not others
. The burden on the accused is to provide the trial judge with
    sufficient information to convey that, objectively, there is substance to his
    testimonial intention. The information could consist of the type of potential
    defences open to the accused or the nature of his testimony.
However, the accused is not bound by his stated intention; he
    remains free to control his defence, as the case unfolds, in a manner he deems
    appropriate.
[Citation omitted; emphasis added.]

[53]

It might be said that there was an objective
    rationale for the appellant to testify only on one count. It was at least
    arguable. While there were many similarities in relation to the two counts,
    N.P. alleged a more invasive sexual assault, one that might have led to a
    different tactical approach. To succeed on the N.P. count, especially given
    that she testified the appellant kissed her, the appellant may have been
    required to testify in order to effectively challenge N.P.s version. With
    A.W., the charge was fought on the more straightforward basis of a mistaken
    impression about the nature of touching during the massage.

[54]

The appellant did not need to convince the application
    judge that this was a winning strategy; he only needed to provide an objective
    rationale for testifying on one count but not the other.

[55]

In
Last
, the
    Court found that the appellants strategy was objectively justifiable. However,
    in the final analysis, it was not the only factor. In this case, it was a
    factor that needed to be weighed in the context of all the other factors,
    including the viability of the similar fact application.

[56]

The Crown argues that, if s. 686(1)(b)(iii) is
    not applied to the A.W. count (on which the appellant said he was reluctant to
    testify), it should be applied to the N.P. count (on which the appellant said
    there was a likelihood that he would testify). I would decline to apply the
    proviso in this manner. To do so would suggest that the trial was only half
    fair. Preserving the conviction on one count, but not the other, is an
    inadequate half measure that fails to properly vindicate the duty to give
    reasons for a fundamental decision, which is at the heart of this appeal.

[57]

I would allow the appeal on this basis and order
    a new trial. However, for the sake of completeness, I briefly consider the
    appellants other grounds of appeal.

(2)

Uneven Scrutiny

[58]

The
    trial judge did not approach the evidence unfairly by applying differential
    standards of scrutiny to the Crown and defence evidence. He carefully reviewed
    the evidence of each witness for honesty, plausibility, as well as internal and
    external consistency. This was undertaken through the lens of the presumption
    of innocence and the proper burden of proof.

[59]

This
    court has considered the complaint of uneven scrutiny on many occasions. The
    argument usually fails. In
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183,
    Laskin J.A. explains why. At para. 39, he said:

The "different standards of
    scrutiny" argument is a difficult argument to succeed on in an appellate
    court. It is difficult for two related reasons: credibility findings are the
    province of the trial judge and attract a very high degree of deference on
    appeal; and appellate courts invariably view this argument with skepticism,
    seeing it as a veiled invitation to reassess the trial judge's credibility
    determinations.

[60]

In
R. v. Gravesande
, 2015 ONCA 774, 128 O.R. (3d) 111, Pardu J.A.
    elaborated on what is required to succeed, at para. 19:

For an appellant to successfully advance this
    ground of appeal, she must identify something clear in the trial judge's
    reasons or the record indicating that a different standard of scrutiny was
    applied and something sufficiently significant to displace the deference due to
    a trial judge's credibility assessments. [Citations omitted.]

[61]

The
    appellant has been unable to identify anything in the trial judges reasons
    that would substantiate his claim. The passages he points to are minor and
    unimportant, holding the trial judges reasons to an impossible standard.
    Moreover, the trial judge was aware of this body of law. He said the following
    in his reasons:

In assessing the evidence of witnesses, the same level of
    scrutiny must be applied to all of the evidence provided at trial, whether
    given or introduced by a complainant, the defendant or some other witness. I
    believe I have done so.

[62]

The
    trial judges detailed reasons confirm that he observed the standard he
    correctly identified. There is no merit to this ground of appeal.

(3)

Immediate Reporting to the Police

[63]

In
    what appears to be a reverse recent complaint argument, the appellant argues
    that the trial judge erred in relying on the fact that N.P. reported the
    incident to the police almost immediately. The trial judge referred to this
    evidence when recounting defence evidence concerning N.P.s seemingly normal
    demeanour when she left the premises. N.P. said that she went into her car,
    screamed, and then called her boyfriend, who told her to go talk to the police
    immediately. She did. As the trial judge said in his reasons:

[N.P.] complained to the police within hours, if not minutes.
    Mr. Sahdev was arrested about six hours later. The fact [N.P.] made an almost
    immediate complaint to the police is not proof of Mr. Sahdevs guilt.

[64]

The trial judge did not err in dealing with this evidence. At
    trial, the appellants counsel argued that N.P.s credibility was in doubt
    because she failed to complain earlier, inside the Savy premises. The defence
    also suggested collusion on the part of the complainants. In these
    circumstances, the trial judge did not err in using this evidence in the way
    that he did: see
R. v. D.B.
, 2013 ONCA 578,
310
    O.A.C. 294, at paras. 30-38. He cautioned himself appropriately.

[65]

I
    would reject this ground of appeal.

F.

Conclusion

[66]

I
    would allow the appeal and order a new trial.

Released: DW November 23, 2017

G.T. Trotter J.A.

I agree. David Watt
    J.A.

I agree. Grant
    Huscroft J.A.


WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)     On application of a justice system
    participant who is involved in proceedings in respect of an offence referred to
    in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
    justice may make an order directing that any information that could identify
    the justice system participant shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is satisfied that
    the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary
    for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer significant
    harm if their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
    made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15.

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to in
    subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity is
    protected by the order. 205, c. 32, s. 15

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sim, 2017 ONCA 856

DATE: 20171108

DOCKET: C63535

Laskin, Feldman and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darrin Sim

Appellant

Eric Granger, for the appellant

Andrew Hotke, for the respondent

Heard: October 23, 2017

On appeal from the conviction entered on October 19, 2016
    by Justice Mitch Hoffman of the Ontario Court of Justice, sitting without a
    jury.

Laskin J.A.:

[1]

After a judge alone trial, the appellant, Darren Sim, was convicted of
    criminal harassment by engaging in threatening conduct contrary to s. 264(1)
    and (2)(d) of the
Criminal Code
[1]
.
    The conviction arose out of Sims creation of a private Yahoo! Group website,
    which portrayed the complainant in a false and sexually degrading manner.

[2]

Sim appeals his conviction. His sole ground of appeal is that the trial
    judge erred in finding that the unlawful act or
actus reus
of the
    offence had been established.

A.

Background

[3]

By any standard, Sims conduct was morally reprehensible.

(a)

Sims relationship with the complainant

[4]

Sim met the complainant sometime around 2001, when he was almost 30
    years old. He worked in property maintenance in the complainants apartment building.
    Sim regularly saw the complainant around the building, and at one point invited
    her for coffee, an invitation she accepted. They developed a friendship and got
    together from time to time to watch a movie or go skating.

[5]

At some point Sim developed romantic feelings for the complainant, which
    he expressed to her. His feelings were not reciprocated. The two remained
    friends however, and continued to get together occasionally until 2003 or 2004.
    Then, the complainant decided she wanted to find a romantic partner, and
    realizing that Sim still harbored romantic feelings for her, told him it was
    best that they not see each other. Her decision disappointed and frustrated him.

[6]

In the years that followed, Sim and the complainant married other
    people, and each started a family.

[7]

Later, Sim and the complainant began emailing each other a few times a
    year to provide brief updates on their respective lives and families. Around
    2009, Sim began asking the complainant for photos of herself, which she sent to
    him.

(b)

Sims Yahoo Group website

[8]

In November 2010, without the complainants consent, or even her
    knowledge, Sim created his Yahoo! Group website, which included an online
    internet forum dedicated, according to the websites home page, to the degradation
    and online spreading of the complainant. He recruited at least 150 members to
    his website.

[9]

Sim posted extensive biographical details and photos of the complainant
    on the website. He authored false, degrading, vile, and grotesque sexualized
    commentary about her on the websites messaging forum. He encouraged group
    members to post their own vile comments about the complainant, to author and
    share crude sexual fantasies involving her, and to alter photographs of her in
    a sexually degrading way and share those as well. He also encouraged members to
    ejaculate on the pictures of the complainant he had posted, and to upload
    photos of these semen covered pictures to the website  all as part of a
    campaign to make the complainant look like the cock slobbering little slut she
    is.

(c)

The complainants discovery of Sims Yahoo Group website

[10]

In
    April 2013, the complainant received an email, which led to her discovery of
    Sims Yahoo! Group website. By then the website had over 1500 members. The
    email the complainant received contained a link to the websites home page. The
    complainant opened the link and was shocked and frightened by what she saw. The
    home page contained a picture of her from her wedding next to the caption CUM
    SLUT. The home page also listed biographical details of the complainant,
    including her name, age, weight, height, bra size, underwear size, hobbies,
    education, occupation, and number of children.

[11]

The
    following day, using a username and password created for her by a co-worker,
    the complainant gained full access to the website. She took screenshots of the
    home page, the photos of her, and the multiple perverted and sexual message strings
    about her. She took the screenshots to the police. Eventually Sim was charged
    with criminal harassment and publishing defamatory libel. He was convicted of
    the former charge and acquitted of the latter.

B.

Discussion

[12]

Subsection
    264(1) of the
Criminal Code
sets out the offence of criminal
    harassment, and s. 264(2) specifies that the conduct amounting to criminal
    harassment can be committed in one of four ways:

(1)
Criminal harassment
 No person shall,
    without lawful authority and knowing that another person is harassed or
    recklessly as to whether the other person is harassed, engage in conduct
    referred to in subsection (2) that causes that other person reasonably, in all
    the circumstances, to fear for their safety or the safety of anyone known to
    them.

(2)
Prohibited conduct
 The conduct mentioned
    in subsection (1) consists of

(a) repeatedly following from place to place the
    other person or anyone known to them;

(b) repeatedly communicating with, either directly
    or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or
    place where the other person, or anyone known to them, resides, works, carries
    on business or happens to be; or

(d) engaging in threatening conduct directed at
    the other person or any member of their family.

[13]

Sim
    was convicted under paragraph (2)(d)  engaging in threatening conduct
    directed at the other person. In lengthy reasons, the trial judge found that
    the Crown had established the mental element or
mens rea
of the
    offence:

The Crown has also established well beyond a reasonable doubt
    that the accuseds threatening conduct towards the complainant was done while
    he was at least reckless as to whether she was harassed. The
mens rea
of count one is made out as well.

[14]

Sim
    does not challenge this finding. He does, however, challenge the trial judges
    finding that the
actus reus
had been made out. The trial judge found:

I have found that the
actus reus
of threatening has
    been made out on the basis of all the evidence I accept. In particular the
    accuseds recklessness at least about the link being made between the real-life
    [P.L.] and the on-line [P.L.]. As well as the recklessness about the
    complainant finding out about the home page and the whole website, as she
    eventually did.

[15]

Sim
    submits that the trial judge erred in law in making this finding because establishing
    the
actus reus
of the offense
requires proof that the accused subjectively intended to engage in threatening
    conduct. The trial judge acknowledged that if the
actus reus
imports a
    requirement to prove an accuseds subjective intention, then Sim was entitled
    to be acquitted. But the trial judge held that there was no such requirement. I
    agree. For that reason, I do not accept Sims submission.

[16]

In
R. v. Burns
, 2008 ONCA 6, 77 W.C.B. (2d) 402   relying on the
    judgment of the Yukon Territory Court of Appeal in
R. v. George
, 2002
    YKCA 2, 52 W.C.B. (2d) 530  this court endorsed an objective standard for
    determining the
actus reus
of harassment by engaging in threatening
    conduct. At para. 2, the court wrote:

To establish harassment under s. 264(2)(d) of the Criminal
    Code, the Crown had to establish that the appellant engaged in threatening
    conduct. We accept the definition of threatening conduct given in
R. v.
    George
at para. 39 that, in order to meet the objectives of s. 264, the
    threatening conduct must amount to a tool of intimidation which is designed to
    instill a sense of fear in the recipient. The impugned conduct is to be viewed
    objectively, with due consideration for the circumstances in which they took
    place, and with regards to the effects those acts had on the recipient. [Citation
    omitted.]

[17]

In
    support of his submission, Sim focuses on the word designed in the phrase
    tool of intimidation which is designed to instill a sense of fear in the
    recipient. I do not read this phrase or the word designed in the way Sim
    does for two main reasons.

[18]

First,
    Sims submission is inconsistent with s. 264(1) of the
Code
and thus
    is contrary to Parliaments express intent. Subsection 264(1) specifies that
    the
mens rea
component of criminal harassment can be met by an
    accuseds knowledge or recklessness. To suggest that the
actus reus
of
    threatening conduct requires a specific intent to instil fear is contrary to
    the plain language of s. 264(1).

[19]

Second,
    as this court said in
Burns
, under s. 264(2)(d) the conduct in
    question must be viewed objectively. In other words, would the accuseds
    threatening conduct cause a reasonable person in the complainants situation to
    fear for her safety? The word designed does not require the Crown to prove
    the accuseds subjective intention. And, in assessing whether an accuseds
    conduct is threatening under s. 264(2)(d), a judge is not required to get into
    the accuseds mind.

[20]

Instead,
    the word designed is meant to focus on the effect of the accuseds conduct on
    a reasonable person in the shoes of the target of the conduct. In
Burns
,
    this court clarified that the objective assessment must consider the
    circumstances in which the conduct took place, and the effects that the conduct
    actually had on the complainant. Although an accused's threatening conduct may
    not affect every target of that conduct, in every conceivable situation, it
    could well instill fear in a reasonable person in the complainants specific situation,
    particularly when the actual effects of the conduct on the complaint are
    considered. That is the case here. The trial judge did not err in finding that
    the Crown had established the
actus reus
of the offence.

[21]

I
    would dismiss the appeal.

Released: J.L. November 8,
    2017

John
    Laskin J.A.

I
    agree. K. Feldman J.A.

I
    agree. R.A. Blair J.A.

[1]

R.S.C., 1985, c. C-46