



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    the victim or witness shall not be published in any document or broadcast or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    the justice system participant shall not be published in any document or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


