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February 1, 2002

Yukon court narrows definition of harassment

'Troubling' verdict: Feeling threatened by a man does not suffice, judges rule

Sarah Schmidt
National Post

The Yukon Court of Appeal has reversed a criminal harassment conviction against a man who approached a woman on a Whitehorse street and offered her $20 to go for a walk with him.

The case has renewed the debate about whether the fact a woman was afraid should be enough to convict someone of having harassed her.

The case involved an unnamed 24-year-old woman approached on a street by Roy George. The woman said the $20 proposition frightened her and she ultimately ran away from Mr. George.

Police had issued two public warnings about Mr. George, saying he was dangerous. Friends had told the woman about the warnings before the Oct. 24, 2000, encounter.

A lower court convicted Mr. George for engaging in "threatening conduct" as set out in Canada's criminal harassment law.

The appeal court overturned the ruling.

Its decision, released Wednesday, acknowledges that the woman might have felt threatened but concludes an "objective" standard must be met so the "words convey a threat of serious bodily harm to a reasonable person."

"Such a gesture can be characterized as crude and socially inappropriate. There is nothing in this conduct that can be characterized as amounting to a threat, however. It cannot be said that the offering of the money was designed to intimidate or to instill a sense of fear," according to the unanimous decision.

He cited a Quebec court of appeal decision. "Even if a complainant states that she subjectively feared for her safety, that would not be sufficient because the trier of fact must be satisfied that 'reasonably,' therefore from an objective point of view [of a reasonable person], this 'threatening' conduct, 'in all the circumstances,' caused the complainant to fear for her safety."

Criminal harassment law is usually applied in cases involving estranged intimate partners. Pam Cross, executive director for the Metropolitan Action Committee on Violence Against Women and Children, worries about the court's emphasis on "objective fear."

"That's troubling, the extent to which the Court of Appeal stresses it's an objective test and not a subjective test. As a society, I don't think we understand well enough the complexities of violence against women.... If I have been physically and mentally abused by my male partner and I leave him, his words may mean nothing to you or the average person off the street, but they're code to me. There is a place for subjective fear in our courts."

Prior to the encounter on a Whitehorse street, Mr. George had run into the woman on three separate occasions.

He introduced himself on a city street, and invited her to a house. She accepted the invitation and borrowed music, but left soon after. She testified she felt "bothered" by him.

On another occasion, she was riding her bicycle in the city. Mr. George offered to fix a mechanical problem. They also exchanged pleasantries at a local soup kitchen.

The woman, who has a learning disability, later learned about the RCMP warning, which included a photograph of Mr. George.

Two witnesses testified at trial. One observed the woman telling Mr. George loudly, "I have to go." The other witness heard her say, "Quit following me and leave me alone." She approached the woman, who appeared "anxious, very upset and frightened."

The second witness approached Mr. George because she was concerned he may have been following the woman. She approached him and enquired, "What was going on with you and the young girl?"

Mr. George replied he did not know what she was talking about, according to testimony.

Kimberly Eldred, counsel for Mr. George, said the decision necessarily limits the power of a woman's feelings in criminal harassment cases.

"This is criminal legislation. It has to be specific and it has to be limited. We can't cast the net too widely. People have to know what they can and can't do. That's the hallmark of criminal legislation."

Barbara Powick, director of the Yukon Women's Transition Home, said the decision is bad news for women fleeing abusive relationships.

"It's not going to help women who are under threat here. Does a woman have to be violated and have broken bones for the judicial system to support women and secure their safety?"

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