Discuss about the Legal Research Memorandum for Criminal Harassment.
TO: Shania Sanders
FROM: David Black
DATE: December 03, 2016
FILE NO: 15-842
RE: Criminal harassment of Shania Sanders by her neighbor Mark Mudler
Stalking is considered as criminal harassment, and includes behavior in the form of repeatedly following someone, or communication with, and even watching over the other person’s dwelling home. This behavior is against the laws in Canada. Stalking is considered as predatory in nature as the victim is plunged into a world of terror, as well as, fear (Canadian Resource Centre for Victims of Crime, 2016). Through this memorandum, the case of Shania has been analyzed, to determine the strength of her case against Mark Mudler. This has been done by carrying out an analysis of her case, along with the applicable statute and relevant case.
In the given case, Shania has, on various instances, caught Mark looking at her kitchen window from his back window through binoculars. Upon confrontation, he has always stated that he was indulged in bird watching. Moreover, he has passed lewd comments to Shania. Recently, instead of the binoculars, Mark had started watching Shania through a drone, and still stated that he was bird watching. And after this confrontation, he watched Shania from a vantage point. The latest incident crossed all limits as Mark invited his friends to watch over his backyard. And instead of watching, the passed comments whenever Shania was outside. Due to this, Shania fear to go out on her own property.
Whether Shania has any legal right to sue Mark for his behavior?
Stalking form of criminal harassment is treated as an offence under the Canadian Law (Manitoba, 2016). And it is punishable by indictment or summary conviction. A maximum penalty of ten years in the prison is awarded for this offence. Criminal Code through Section 264 contains the provisions regarding this form of criminal harassment (Department of Justice, 2016).
Section 264 (1) states that a person is not allowed to engaged in the conduct referred in subsection 2 of this section, without the lawful authority and knowing that the other person is harassed or recklessly as to whether such other person is harassed, which results in the other person in reasonable circumstances to fear for their safety, or for the safety of someone who is known to them (Department of Justice, 2016).
The prohibited conduct is mentioned in subsection 2. Among the other prohibited conduct, this section includes watching or besetting of the dwelling-house or any such place where another person, or a person known to them, lives, carries or business, works, or is present. Subsection 3 covers the punishment for contravention of this section, in the form of summary conviction, or imprisonment up to ten years being an indictable offence (Government of Canada, 2012).
There are various case laws in which criminal harassment has been established, and the guilty have been punished. One of the famous cases in this regard includes the case of R. v. Sillipp [1997] ABCA 346. In this case, Erwin Franz Sillipp stalked Ms Ferland at various instances. As a result of this criminal harassment, various restraining orders were issued against Sillipp. On the breach of these orders, and on finding Sillipp guilty on two counts of criminal harassment under the quoted section, he was sentenced to 30 months incarceration (Canadian Legal Information Institute, 2016).
In another case of Dunnett v The Queen [2000], Harry Dunnett was held to be in breach of this section. This was because his daughter and wife feared for their lives, especially the emotional health of the daughter (Canadian Legal Information Institute, 2016). In the matter of R. v. Ryback (1996), the appellant was involved in stalking of the victim, i.e. the plaintiff, outside her workplace, and her home. The judge held that the plaintiff had reasonably feared for her safety due to the behavior of the defendant. And accordingly, the defendant was held guilty of contravention of section 264 of the Criminal Code (Canadian Legal Information Institute, 2016).
In the case of R. v. Kordrostami [2000] 47 O.R. (3d) 788, the judges considered that in order for a breach of this section, certain elements had to be established. These elements included harassment, knowledge or recklessness, fear for safety, and reasonableness of fear. In this case also, the accused was convicted of breach of section 264 and was awarded 18 months as suspended sentence (Canadian Legal Information Institute, 2016).
As stated in the quoted section, watching the dwelling house also amounts to criminal harassment. And this was evident in the case where David Holroyd was found guilty of criminal harassment, and was sentenced. Upon breaching his bail conditions, he was put on probation for three years, and was also ordered to keep a distance of 1000 meters from the victim. Holroyd used to constantly look out of his window at the victim, and he even tried to video film her. Due to this, the victim could not enjoy her right to the property and feared to return home. Along with the punishment, Holroyd was also prohibited from possession telescopes and binoculars (Eagle, 2013).
One of the recent cases of neighbors involved in such criminal harassment includes the case of R. v. Amos [2014] YKTC 61, where the defendant was found guilty of criminal harassment stated under section 264, as he knowingly harassed the victim and even passed lewd comments. And to give this verdict, the judge had made reference to the case of R. v. Sillipp (Canadian Legal Information Institute, 2014).
Applying the provisions of the Criminal Code section 264 to the present case, it is clear that Mark was in violation of this section. This is because he was involved in the prohibited conduct of watching a person’s dwelling house, where Shania lived, and where he had no lawful authority to do so. Moreover, he knew that Shania was being harassed by him, as she had repeatedly complained to him. Furthermore, Shania also feared for her safety and could not go out on her own property.
Applying the verdict of R. v. Sillipp case, Mark should be awarded punishment in terms of a sentence. Moreover, Dunnett v The Queen, R. v. Amos, and R. v. Ryback cases provide that this section is breached when the victim fears for his/her safety. In this case, Shania feared for her safety and this is why could not even go outside on her own property. Also, as was done in the case of Holroyd, Mark should also be prohibited from using binoculars and the drone. Due to Mark’s behavior, Shania could not even enjoy her right to the property and feared going outside.
To further establish that Mark was guilty, the elements provided in the case of R. v. Kordrostami should be applied. Here, the harassment was clearly present; Mark had clear knowledge about this as Shania had complained to him repeatedly; there was a fear for safety for Shania; and lastly, there was reasonableness in this fear. This reasonableness is evident from Mark inviting his friends to get involved in such behavior along with him. So, the fear of Shania was reasonable as the actions of Mark were escalating.
Conclusion
From the above analysis, it is clear that Mark was involved in criminal harassment in form of Stalking. His actions have resulted in fear for safety for Shania and the right to enjoy her own property. As a result of this, Shania does have the legal right to sue Mark for his behavior. She can initiate actions against Mark for the breach of section 264 of the criminal Code, upon which the court would award appropriate punishment to mark, as was done in the quoted case laws.
References
Canadian Legal Information Institute. (2014). R. v. Amos, 2014 YKTC 61 (CanLII). Retrieved from: https://www.canlii.org/en/yk/yktc/doc/2014/2014yktc61/2014yktc61.html?searchUrlHash=AAAAAQANUi4gdi4gU2lsbGlwcAAAAAAB&resultIndex=3
Canadian Legal Information Institute. (2016). Dunnett v. The Queen, 2000 CanLII 10275 (NB CA). Retrieved from: https://www.canlii.org/en/nb/nbca/doc/2000/2000canlii10275/2000canlii10275.html?searchUrlHash=AAAAAQAGU2lsbGlwAAAAAAE&resultIndex=4
Canadian Legal Information Institute. (2016). R. v. Kordrostami, 2000 CanLII 5670 (ON CA). Retrieved from: https://www.canlii.org/en/on/onca/doc/2000/2000canlii5670/2000canlii5670.html?searchUrlHash=AAAAAQAGU2lsbGlwAAAAAAE&resultIndex=1
Canadian Legal Information Institute. (2016). R. v. Ryback, 1996 CanLII 1833 (BC CA). Retrieved from: https://www.canlii.org/en/bc/bcca/doc/1996/1996canlii1833/1996canlii1833.html
Canadian Legal Information Institute. (2016). R. v. Sillipp, 1997 ABCA 346 (CanLII). Retrieved from: https://www.canlii.org/en/ab/abca/doc/1997/1997abca346/1997abca346.html
Canadian Resource Centre for Victims of Crime. (2016). Criminal Harassment. Retrieved from: https://www.crcvc.ca/docs/crimharass.pdf
Department of Justice. (2016). A Handbook for Police and Crown Prosecutors on Criminal Harassment. Retrieved from: https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/har/part1.html#footnote39
Eagle, G. (2013). Stalker banned from home for spying on neighbor. Retrieved from: https://www.torontosun.com/2013/03/06/stalker-banned-from-home-for-spying-on-neighbour
Government of Canada. (2012). Criminal harassment. Retrieved from: https://laws-lois.justice.gc.ca/eng/acts/C-46/section-264.html
Manitoba. (2016). Stalking is a crime. Retrieved from: https://www.gov.mb.ca/justice/domestic/pdf/stalkingweb.pdf
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