SELECTED CASE LAW
NEW BRUNSWICK:
In 1999 CanLII 13126 (NBCA), Mr. B was found guilty of harassment, breaching a court order and breaching probation that prohibited contact with his former partner. The no contact order was related to previous domestic disputes with his spouse, Ms. B. Following that order, Mr. B had entered Ms. B’s home at night when she was sleeping, refused to leave and frightened her. She called the police who removed Mr. B and Mr. B later told her he would kill her if she kept up that type of behaviour. He would also call Ms. B and leave voicemails that threatened to hurt her unless she talked to him. He called her over 90 times over a 5-month period.
He was sentenced to 12 months’ imprisonment. At the Court of Appeal, he appealed his conviction, arguing there was an error in law in that his actions did not constituted criminal harassment, that questions that went to Ms. B’s creditability were incorrectly disallowed, the court did not have jurisdiction to enter Mr. B into a recognizance, among other things. He appealed his conviction, arguing that the Kienapple principle should apply to the uttering threats and breaching a court order, and that 12 months was excessive as there was not physical contact and he did not have a previous record.
The court held that the court order and accompanying recognizance was valid, Ms. B had good reason to be fearful and his behaviour constituted criminal harassment; that the Kienapple principle did not apply to the violation of the court order and uttering threats, as they did not overlap or rely on the same elements and facts; and that the sentence was not too severe with the court stating “this Court is not inclined to be indulgent of belligerent conduct in domestic disputes”.[1] The appeal was dismissed.
[1] [1999] NBJ No 462 (NBCA) at para 15.
Criminal Offence(s): Criminal Harassment