05/02/2020 2016 ONCJ 35 (CanLII) | CanLII In R. v. Kosikar,[1] Justice Goudge, following Justice Proulx in the Quebec Court of Appeal in R. v. Lamontagne,[2] agreed with this description of the five elements of the offence that originated in a 1997 decision of the Alberta Court of Appeal in R. v. Sillipp:[3] 1) It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (d) of the Criminal Code; 2) It must be established that the complainant was harassed; 3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; 4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and 5) It must be established that the complainant’s fear was, in all of the circumstances, reasonable. The description essentially rearranges the elements in the offence that emerge from the section. In Lamontagne,[4] Justice Proulx rejoins the fourth and fifth elements as they are in the section, while adopting the Sillipp description, and organizes the actus reus into three elements, from which I take the following: Actus Reus – the culpable behaviour and consequences The three elements of the actus reus are: •   the act prohibited under subsection (1), in this case repeatedly communicating directly or indirectly under subsection (2)(b), •   the fact that the victim is harassed and •   the effect that this act provokes in the victim. Harassment means causing someone to be tormented, troubled, worried continually or chronically plagued, bedevilled and badgered. It is not sufficient that the complainant be “vexed, disquieted or annoyed.” (Kosikar, paragraph 21) Mens Rea – the mental element With respect to the mental element of the offence, all of the appeal courts resort directly to subsection (1) – the defendant must know or be reckless as to whether the complainant is harassed – and add wilful blindness. While addressing this mental element, the specific statutory state of mind, the authorities from three of the provinces (Sillipp, Lamontagne and Kosikar), were dealing with the prohibited behaviour in subsection (d), threatening. Only R. v. Rybak[5] in the British Columbia Court of Appeal dealt with (b), repeatedly communicating. That case involved delivery of a package, a dinner invitation and a personal appearance at the complainant’s house on Valentine’s Day. Those courts did not address the mens rea of communicating directly or indirectly. While in most cases the general intent required for committing that part of the actus reus will be self-evident, since the case involves Twitter I address the mental element in relation to the actus reus of repeatedly communicating. This is because some of the communication that is alleged to constitute the repeated communication is tweets using hashtags that could have been conveyed to the complainants or that they could have seen, but Mr. Elliott did not necessarily intend or know that. The mental element that the charging section and the charge specify relates to the part of the actus reus that involves awareness of the complainant being harassed. Justice Proulx makes clear in Lamontagne that the complainant must be harassed in fact as a consequence of the prohibited act, and Justice file:///Users/nerissa/Downloads/Columbia CSV/R v Gregory Allan Elliott.htm 6/43