R. v. G.J.M.

R. v. G.J.M. Court Court of Appeal Date 1996-02-06 Citation 1996 NSCA 44 Docket CAC 121848 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA); Flinn, Edward J. (Honourable Justice) Document Type Decision Decision Content C.A.C. No. 121848 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. G.J.M., 1996 NSCA 44 Freeman, Bateman and Flinn, JJ.A. BETWEEN: G.J.M. ) Mona Lynch ) for the Appellant Appellant ) ) - and - ) ) ) Her Majesty the Queen ) Denise C. Smith ) for the Respondent Respondent ) ) ) Appeal Heard: ) February 6, 1996 ) ) ) Judgment Delivered: ) February 6, 1996 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed per oral reasons for judgment of Freeman, J.A.; Bateman and Flinn, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: FREEMAN, J.A. The 14 year old appellant and a companion pestered the slightly younger and smaller complainant for money and food in a hamburger shop and, not satisfied, followed the complainant on the street making threatening comments. The complainant was "really scared". Convicted on a charge under s. 264, the new harassment section of the Criminal Code, the appellant appeals on grounds of insufficient evidence and that the conduct proved at trial differed from the conduct set out in the information. Section 264 (1) and (2) provides: 264. (1) 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 the other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them. (2) 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. The information alleges that the appellant: "knowing that [the complainant] was harassed or being reckless as to whether [he] was harassed did without lawful authority engage in threatening conduct directed at [the complainant] thereby causing [the complainant] to reasonably, in all of the circumstances fear for his safety. Threatening conduct is included in clause (d) of subsection (2) of section 264. The complainant testified: "Okay, so we're at the counter ordering our food and my friend goes, "Ugh-oh, here comes G and R." So G makes his way into Mcdonald's and he asks me, umm, for my change. I say, "No, G, umm, I need this to buy some hockey cards." And then he says, "Oh, don't be stupid, just let me have some of your money." So I gave him 25 cents and thought maybe he'll just leave me alone. So I gave G 25 cents and he just walked off. So then I finished getting my food and I went and say down with my friends. Maybe about a minute and a half later G was... G and R were coming over to our table asking for food. And he went to one of my friends and he said, "Um, may I... can I have some food." And my friend said, "No, you can't." And he... he just took some food anyway. And then they went to me and said, "Well, can I have some of your food." I said, "No, I, I don't want to give you any of my food 'cause I'm kinda hungry and I need it." So then they just like said, "fine" and went to my friend. And they asked him for his food. And he said, "No". And then he said, "Can I have a bite of your burger?" He said, "no." And then R said, "Well, I'll punch you in your face if you don't give it to me." So then he said, "I know you will." And then R kinda calmed down. And then G and R came to me and said, "Well, since you won't give me any food can I have a dollar?" I said, "No, I already told you I need that... I'm going to get some hockey cards." He said, "Oh, come on don't be a jerk. Just gimme, just gimme the dollar and everything will be okay." So I said, "No, I, I don't want to give you the dollar 'cause I really want to get some hockey cards." And he said, "Oh, come on just give it to me." And I said, "No, again." And then he said, "I hate it when people are cocky." And then their faces started getting serious. And I thought, well no good can come from this so I started to get up and I just started to leave. And then R said, "I'm comin' down to Cornwallis today." And then I said... turned around and said, "How come?" And he goes, "I don't know" and he rolled his eyes. And I say, "Over a dollar?" And he said, "I'm, I'm just comin' down." So by then I'm walkin' down the sidewalk and then they come out from behind me. And I hear, "Tick, tock someone's getting knocked." And that really frightened 'cause you know I didn't want to get beaten up. This was uncontradicted and the trial judge accepted it. The appellant did not testify. The trial judge specifically found that the appellant harassed the complainant, or at least was reckless as to whether harassment took place, by the manner in which he followed him and communicated with him within the shop. The appellant argues this was conduct under s. 264(2)(a) and (b) which was not specifically alleged. The analysis of the trial judge was flawed in this regard. The conduct was nevertheless threatening conduct. The trial judge stated: "I view it as an incident of criminal harassment under section 264(3)(a) and I make that finding based upon the totality of the evidence. I am convinced beyond a reasonable doubt that the Crown has proved every element of the offence as set out in the Criminal Code. Therefore a conviction shall go forward." The incident must be considered in its totality; threatening conduct may be found with respect to the entire incident. The conclusion of the trial judge is supported by the evidence. (See R. v. Yebes (1987) 2 S.C.R. 168.) The appellant and his companion were acting as a team. The complainant was confronted by two threatening individuals. The trial judge was not in error in finding that the elements of the offence were proved. The appeal is dismissed. FREEMAN, J.A. Concurred in: BATEMAN, J.A. FLINN, J.A. C.A.C. No.121848 NOVA SCOTIA COURT OF APPEAL BETWEEN: G.J.M. ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: Her Majesty the Queen ) ) FREEMAN, J.A. Respondent ) (orally) ) ) ) ) ) ) ) ) )