International Law

R. v. Burns

The Ontario Court of Appeal looks at the meaning of “threatening conduct,” in a case of criminal harrassment. Specifically, the harassment complained of fell under s. 264(d) of the Criminal Code. The Court took as their starting point the definition of threatening conduct given by the Yukon Territory Court of Appeal in George.

In brief, the conduct in question is as follows. The appellant and the complainant knew one another but had virtually no contact in the three years prior to the incident. The incident took place in broad daylight in downtown North Bay while the complainant was walking down Main Street with her five-year old daughter, after having left a bank. The appellant was dressed in full police uniform and also on foot on Main Street. He wolf-whistled at the complainant, said ?nice butt? or ?nice ass? and then, after the complainant sped up to get away from him, called out ?are those pants painted on?.

While the appellant?s conduct was clearly inappropriate and unwanted, we do not see the incident as amounting to threatening conduct within the meaning of those words in s. 264(2)(d). Although the complainant justifiably felt upset and scared by the appellant?s conduct, viewed objectively, we do not see it as rising to the level of a ?tool of intimidation designed to instill a sense of fear?.

On this ground the accused’s appeal was successful and he was acquitted on the charge of harrassment. I would have liked the Court to say something more about the fact that the accused
made these comments while in uniform. To my mind this elevates the conduct, viewed objectively, beyond the merely inappropriate, and potentially makes it threatening and intimidating. This guy wasn’t a construction worker.

Full post as published by Criminal Review on January 09, 2008 (boomark / email).