05/02/2020 2016 ONCJ 35 (CanLII) | CanLII showed a lack of respect for her boundaries and that he was contacting her when she had explicitly requested that he not. His knowledge of the neighbourhood in which she lived and of the increasingly sort of “nonsensical, paranoid, conspiracy theoryesque” nature of his tweets about her and her friends made her feel “very much that there was a potential for danger”. I have already found Ms. Guthrie to be credible. Fear for her safety is subjective to her. This element of the offence is proven beyond a reasonable doubt. Reasonable in all of the circumstances The complainant’s fear for her safety must be reasonable in all of the circumstances. While Ms. Guthrie’s genuinely held fear for her safety is subjective to her, this element of the offence requires an objective assessment of her fear. Justice Berger wrote in Sillipp,[29] “It is trite law that ‘reasonableness’ imports an objective standard that is measured by the reasonable person test.” This does not mean that the subjective grounds for Ms. Guthrie’s fear for her safety do not enter into the determination. It is just that they are subject to an assessment of reasonableness in all of the circumstances. Ms. Guthrie, during testimony, expressed her concern that the case had become focused on her behaviour rather than Mr. Elliott’s. But this final branch of the charge requires an assessment of the reasonableness of her fear. That Ms. Guthrie is a woman is relevant. Crown counsel submits that “a reasonable person, especially, a woman, would find Mr. Elliott’s tweets and behaviour concerning and scary.” Women are vulnerable to violence and harassment by men, and Ms. Guthrie advocates for understanding and change. I must judge the reasonableness of Ms. Guthrie’s fear in all the circumstances and on the evidence. Being a man, I govern myself by now Chief Justice McLachlin’s and Justice L’Heureux-Dubé’s concurring minority opinion in R. v R.D.S.,[30] particularly where they quote Judge Benjamin Cardozo at paragraph 34: There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs.... In this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. And at paragraphs 41 and 42: 41 It is axiomatic that all cases litigated before judges are, to a greater or lesser degree, complex. There is more to a case than who did what to whom, and the questions of fact and law to be determined in any given case do not arise in a vacuum. Rather, they are the consequence of numerous factors, influenced by the innumerable forces which impact on them in a particular context. Judges, acting as finders of fact, must inquire into those forces. In short, they must be aware of the context in which the alleged crime occurred. 42 Judicial inquiry into the factual, social and psychological context within which litigation arises is not unusual. Rather, a conscious, contextual inquiry has become an accepted step towards judicial impartiality. In that regard, Professor Jennifer Nedelsky's "Embodied Diversity and the Challenges to Law" (1997), 42 McGill L.J. 91, at p. 107, offers the following comment: • What makes it possible for us to genuinely judge, to move beyond our private idiosyncracies and preferences, is our capacity to achieve an "enlargement of mind". We do this by taking different perspectives into account. This is the path out of the blindness of our subjective private conditions. The more views we are able to take into account, the less likely we are to be locked into one perspective .... It is the capacity for "enlargement of mind" that makes autonomous, impartial judgment possible. The circumstances I return to some of the circumstances that I reviewed in discussing Mr. Elliott’s knowledge that Ms. Guthrie was harassed. Mr. Elliott never physically hurt Ms. Guthrie. He never threatened her. He never sexually harassed her. After their dinner, except for a possible meeting that she cannot remember, his interaction with her was only by whatever device he tweeted from. file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 37/43