2016 BCCA 76

In 2016 BCCA 76, Mr. C appealed his conviction for uttering threats. He argued that the judge should have recused him or herself due to a reasonable apprehension of bias. The appeal was dismissed. At the trial level, Mr. C was acquitted of harassment but was found guilty of uttering threats.

Mr. C had a history of domestic violence with his ex-partner Ms. B, including several incidents where Ms. B had to call the police. On various occasions Mr. C had assaulted her, called her at her work throughout the day threatening her, yelled at her and the children, and he once hid a webcam in her bedroom that was connected to the internet and pointed towards her bed. He was convicted of assault and mischief. Out of fear of Mr. C, Ms. B moved from Ontario to British Columbia while he was imprisoned for one of these offences.

The trial judge stated that this was a unique case in that the harassment charge: “relies on a number of postings placed on the accused’s personal account on the social media site, ‘Face-book.’ These included an apology, an expression of his love for the complainant and begging her forgiveness in the ‘basic information about Wayne’ section on the Info Page. He also post-ed a number of pictures on a separate Page entitled ‘Wall’ on which was also a link to the song by The Police ‘Every Breath you Take,’ alongside the comment ‘I miss you, [Ms. B], very much.’ Some of the pictures were meaningful to the complainant and combined with the other mate-rials she viewed on his Facebook account, she felt that they were directed at her and meant to tell her that he was close by and watching her.”[1]

Shortly after he was released from prison, Mr. C started a relationship with a new woman in British Columbia, close to where Ms. B had settled with the children. He told the new woman that he wanted to kill Ms. B, a statement which formed the basis charging him with uttering threats. He also told the new woman that he wanted to post photos online to show that he was in Ms. B’s vicinity. At trial, the woman testified that C told her “I want [Ms. B] to look be-hind her back for the rest of her life,” or “I want her to know that I’m close.”[2]

Mr. C had blocked Ms. B from viewing his Facebook account, and she could only see his posts by logging onto her sister’s account. Still, Ms. B wanted to view his Facebook profile to see if he knew she had fled to British Columbia. When she viewed his profile using her sister’s ac-count, she saw photographs near her new workplace and at locations she often visited. She al-so saw diary-like Facebook Notes expressing his love and longing for her, and a link to the song “Every Breath You Take” by The Police. Fearing for her safety, Ms. B stopped visiting the places pictured in the photographs.

At trial, defence counsel successfully argued that Mr. C’s conduct needed to be objectively threatening on the evidence to constitute criminal harassment. The Court held that “the pictures [Mr. C posted] were non-threatening and neutral in nature. Objectively, they were of a benign character as were the comments about the complainant.” The Court further noted that:

It may well be that some of the images had a special meaning or significance to [Mr. B] subjectively viewed whether because they were of businesses or places she visited or attended, or because they were of a location near her place of employment. However, none of these either individually or collectively were specifically directed to the complainant. Rather, they were placed on the accused’s Facebook for any Facebook user to view.[3]

According to the Court, since Mr. B could not see the posts without logging on to her sister’s account, Mr. C’s posts were not directed at her and did not constitute criminal harassment.

In finding Mr. C not guilty of criminal harassment, the Court noted that “it would seem that there could not be any harassment until such time as the complainant decided to view it,” and “that step introduced an element of uncertainty to the completion of the offence as it is outside the control of the accused.”[4] Ultimately, the Court determined that “Whether or not the complainant was harassed was thus dependent solely on her actions and not the accused’s.”[5] Mr. C was, however, convicted of uttering a threat. He appealed his conviction in 2016, claiming that the judge had improperly intervened in the trial proceedings, but his appeal was dismissed.[6]

Also see: 2012 BCPC 561

[1] 2012 BCPC 561 at para 3.
[2] 2012 BCPC 561 at para 47.
[3] 2012 BCPC 561.
[4] 2012 BCPC 561 at para 91.
[5] 2012 BCPC 561 at para 91.
[6] 2016 BCCA 76.


Criminal Offence(s): Criminal Harassment