Intent To Harass?
Can Recklessness Prove An Intent To Harass A Person By A Means Of Telecommunication?
I recently defended Mr. U for the second attempt to prosecute my client for an offence under section 372(3) of the Criminal Code. It was alleged that my client intended to harass a person by repeatedly communicating with that person by means of telecommunication. It was alleged that my client contacted a person multiple times on multiple days with the intent to harass this person. My client admitted that he made multiple calls on multiple days, but he had no intent to harass this person. His calls and his requests were legitimate. The trial judge accepted my client’s testimony when he stated he had no intent to harass the person. This is important because section 372(3) of the Code specifically states:
“Everyone commits an offence who, without lawful excuse and with an intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.
The prosecutor tried to persuade the judge that my client was reckless when he candidly admitted that he made multiple calls on multiple days. It is important to understand that there is another and more common provision in the Code for criminal harassment. This section is 264(2), it states:
“No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone…”
Therefore, under section 372(3) the prosecutor is not required to prove that the person feared for their safety which is consistent with the fact that the actual harassment need not be proven under section 372(3). As with any prosecution and trial, the prosecutor will ask the trial judge to draw an inference from the facts of the case. This will always be fact specific and your lawyer should speak to you about your facts and any possible inference a trial judge could draw.
However, in my case, the trial judge was unable to draw this inference because he accepted as a fact that my client did not intend to harass the person despite making several calls on several days. The prosecutor argued my client was reckless with his multiple calls and therefore he should be found guilty. Recklessness is a form of mens rea. All criminal offences have a form of mens rea (the mental intent the prosecutor must prove) that must be made out beyond a reasonable doubt.
Recklessness has been said to a lessor form of mental intent. What is important to know about recklessness is that the accused must foresee the risk that is relevant to the offence for which he or she is charged and then decide to take the risk. In my case, there was no evidence to suggest my client foresaw the risk but proceeded in any event. Recklessness is tricky and prosecutors often rely on it to make out their case. It is important your lawyer knows the test and is able to navigate your trial and advocate on your behalf. Recklessness is taught in law school but all too often lawyers think they know the test but fail to carefully scrutinize their case and the test that is required in order to invoke it.
This case is an excellent example which demonstrates why your lawyer must be experienced and carefully navigating the details of the case and the law so as not to fall beneath the bog that the trial judge addressed in his opening comments.
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