R. v. McCowan, 2021 BCPC 241 (CanLII)
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2021 BCPC 241 |
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Date: |
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File No: |
21714 |
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Registry: |
Western Commnunities |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
KAREN LOUISE McCOWAN
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
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P. Cheeseman |
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Appearing in person: |
Ms. McCowan |
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Colwood, B.C. |
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Dates of Hearing: |
October 6 - 7, 2021 |
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Date of Judgment: |
October 7, 2021 |
[1] Ms. McCowan is charged with a single count of criminal harassment, contrary to section 264 of the Criminal Code.
[2] The complainant is Mr. Norman Henderson. Mr. Henderson and Ms. McCowan met in the mid-1990’s, when Mr. Henderson was operating a towing business and attended at Ms. McCowan’s home to provide towing services to a member of her family. Shortly thereafter, Ms. McCowan sent several invitations to Mr. Henderson to dine at her home and engage in other social activities. Mr. Henderson declined those invitations. During the ensuing 25 years or so, Ms. McCowan sent many telephone messages and written communications to Mr. Henderson. The following are some illustrative examples:
I fucking hate you, you just don’t fucking get it. … I don’t want anything to do with you.
* * *
I’m very, very sorry for what I said last night. I really, really am, and I hope you’ll forgive me, and I apologize for calling.
* * *
Well, Norman, life has change for me and I don’t want you in my life. I’m sorry, I really am, I never thought I’d feel that way …
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I’m kind of busy this morning, but I was wondering if maybe we could meet somewhere this afternoon .,.
* * *
Yeah, hi, this is the last time I’ll be asking you over for dinner …
Mr. Henderson did not respond to any of her communications.
[3] Ms. McCowan has never threatened Mr. Henderson or anyone else. There is no evidence that she has ever possessed a weapon.
[4] The only incident of violence mentioned in the evidence occurred in 2019. Ms. McCowan attended, uninvited, at Mr. Henderson’s home. An argument ensued, during the course of which Ms. McCowan raised her hand in what appeared to be an attempt to slap Mr. Henderson in the face. Mr. Henderson warded off the blow with his arm and the only contact which ensued was between Ms. McCowan’s hand and Mr. Henderson’s arm. Neither was injured. Mr. Henderson has not seen Ms. McCowan since that incident. Ms. McCowan stopped sending written communications to him at about the same time, although she continued to leave messages on his answering machine.
[5] Mr. Henderson did not say that he fears Ms. McCowan. Objectively, there is no reason for him to do so. Mr. Henderson is a robust adult male, a carpenter by trade. Ms. McCowan is woman of very small stature. Assuming the slapping incident to have been an assault, Mr. Henderson had no difficulty in defending himself.
[6] Mr. Henderson said that he is concerned that Ms. McCowan might attempt to harm his spouse or his children. Ms. McCowan has never had any communication or interaction with the spouse or children. The children are adults who no longer live with their parents. The evidence discloses no reason to think that Ms. McCowan knows where they live.
[7] In order to constitute an offence under section 264, the conduct complained of must be such that it causes the complainant “… reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them …”. Mr. Henderson did not say that he fears for his own safety. The question is whether a reasonable person in Mr. Henderson’s position would fear for the safety of his spouse or children. For the following reasons, I conclude that the answer is “no”:
a. Ms. McCowan has never attempted to communicate with Mr. Henderson’s spouse or children. There is no evidence that she has ever encountered them. There is no reference to any of them in Ms. McCowan’s letters or voice messages.
b. Ms. McCowan has never threatened violence against anyone.
c. The only incident of violence in the 25-year history of exchanges between Ms. McCowan and Mr. Henderson is the slapping incident, which was trivial and occurred 3 years ago.
d. There is no evidence that Ms. McCowan has ever possessed a weapon. By reason of her stature, any unarmed assault by Ms. McCowan would be easily repelled by the victim.
e. Constable Ball previously served for four years as a member of an integrated mental health team deployed by the Calgary Police Department. In the course of that deployment, he worked closely with the mental health professionals on the team and acquired some working knowledge of mental health issues. Constable Ball attended at Ms. McCowan’s home on March 26, 2019 in response to a complaint that Ms. McCowan’s son had committed wilful damage to the house. He interviewed Ms. McCowan, whom he found to be emotionally labile, which he attributed to alcohol consumption. He considered whether to apprehend her under the authority of section 28 of the Mental Health Act RSBC 1996, c 288, but decided not to because he was not of the opinion that she posed a risk to the health or safety of herself or anyone else.
[8] Mr. Cheeseman, for the Crown, suggests that, if I am unwilling to convict Ms. McCowan of the offence charged, I should impose a common-law peace bond to restrain Ms. McCowan from further communication with Mr. Henderson. He relies upon R v Fehr [1997] B.C.J. No. 154 and R v Jeanes, 2014 BCSC 995; [2014] BCJ No. 1166.
[9] A common-law peace bond may be imposed only where “… there are probable grounds to suspect or be apprehensive that there may be a breach of the peace in future …”: Fehr at paragraph 11. In this case, the only breach of the peace disclosed by the evidence is the slapping incident, which occurred in 2019. Since that time, the only behaviour complained of is the repeated messages on Mr. Henderson’s answering machine. However distasteful those may be, they do not constitute a breach of the peace. Mr. Henderson has not encountered Ms. McCowan since the slapping incident, and there is no reason to believe that he will in future.
[10] Many people suffer from psychiatric disorders. Many of those people engage in behaviours which are irritating to their neighbours. Ms. McCowan is one of those people. However, we do not criminalize those behaviours unless it is proven that the person is a danger to others or is likely to cause a breach of the peace. Ms. McCowan is neither. If I were to impose a peace bond, it is highly likely that Ms. McCowan would disobey it because of the obsessive-compulsive state of mind which is manifest in her written and spoken communications to Mr. Henderson. To impose a peace bond would be to expose Ms. McCowan to criminal sanctions for conduct which is not criminal.
[11] I acquit Ms. McCowan of the charge which she faces, and decline to impose a peace bond.
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The Honourable Judge Gouge
Provincial Court of British Columbia