Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Sheppard, 2022 ABCA 89, March 11, 2022, at paragraphs 12 to 16:

The elements of the offence of harassment under sections 264(1) and 264(2)(b) are:

1. The accused (D) repeatedly communicated with, either directly or indirectly, the complainant (C) or anyone known to them: section 264(2)(b).

2. C was harassed.

3. D knew or was reckless or wilfully blind that C was harassed.

4. D’s conduct, meaning #1 above, caused C to fear for her safety.

5. C’s fear was reasonable in all the circumstances.

That the prohibited conduct was undertaken with “lawful authority” is a defence that may be raised by an accused.

 “Harass” means to be “tormented, troubled, worried, plagued, bedeviled and badgered”…The list of words is not cumulative, nor do they replace the word “harassed”. “Thus, it would be harassment to be ‘plagued’ in one context and ‘bedeviled’ in another”.

In considering the impact of the conduct and the gravity of the wrong on the complainant, the entire factual context must be considered, which in this case would include the history of the relationship.

A complainant’s fear for her safety includes fear for her physical safety as well as emotional and psychological safety…Whether a complainant’s fear is reasonable is viewed objectively. But “the application of the reasonable person test to the objective evaluation of ‘all the circumstances’ does not mean that the particular vulnerabilities of the complainant are excluded from consideration”: Sillipp at para 27. The reasonableness of the fear “takes into account the gender of the victim, the history and circumstances of the relationship, and the state of mind of the victim”: Sidhu at para 26. Further, pre-charge conduct may be considered to determine the reasonableness of the complainant’s fear…