Saturday, March 27, 2010
Poor Conduct isn't enough as harassment is difficult to prove
Harassment is one of the most difficult charges to prove, an offence so vague it is specifically designed to be open to interpretation.
What may be annoying and trivial to one person may be frightening and criminal to another.
The charge of harassment was put on rare public display this month in the case of a Manitoba RCMP officer accused of making life miserable for his ex-girlfriend, a provincial Crown attorney, by sending her hundreds of angry emails, text messages and phone calls after their relationship ended in 2008.
Provincial court Judge Christine Harapiak acquitted Cpl. Jeff Moyse on Thursday, saying she didn't believe Debbie Buors was scared because Buors never specifically said she was fearful of Moyse during her testimony.
University of Manitoba law Prof. Karen Busby said the high-profile trial highlights the unique nature of harassment. Unlike most other offences usually based on specific acts, harassment is in the eye of the beholder. The alleged victim must prove legitimate concerns for safety -- and a judge must find that fear was logical.
"The charge isn't meant to punish bad behaviour in relationships... of which we've probably all been guilty or known someone who's been guilty," Busby said Friday. She watched the trial from a distance, but wasn't surprised by the verdict. The judge said the evidence showed both Moyse and Buors were frequently communicating with each other, with much of the communication pleasant. The judge said there were times both showed poor judgment in comments made to each other. Buors also admitted to refusing to give Moyse back some of his personal property.
"One of the elements in proving harassment is showing the contact was unwanted. You also have to establish the accused knows the contact is unwanted," Busby said.
"The (victim) would know the (harasser), know what they're capable of," she said. Cases of domestic violence frequently result in charges such as uttering threats and assault, following clear-cut incidents. Busby said many people also apply for protection orders against their former partners, requiring them to stay away.
"The civil order works in the way of saying, 'Buddy, you've gone too far,' " Busby said. "I think a lot of people get that message. It's a safety valve, which is a good thing."
Barbara Judt, the executive director of Osborne House, supports the harassment law as it exists, but said women often have a tough time admitting fear.
"Many women may be afraid to come forward. They just tend to take it. They begin to believe they deserve it, that they don't deserve any better," she said.
Judt believes those who do seek help are getting plenty of support from the justice system.
"We see a lot of people who get a protection order and, once it's in place, that ends it. I don't think very often our clients are refused an order when they seek it," she said.
Harapiak acknowledged the challenge of proving harassment. "Criminal harassment consists of a series of behaviours, which, taken on their own, are legal. It is the knowledge of the harassment, and the causation of fear, that lifts these behaviours out of the ordinary and into the criminal realm.
"It is important in these cases to take a hard look at the facts and be certain not to criminalize inappropriate and insensitive behaviour."
Following Thursday's acquittal, special prosecutor Ryan Rolston asked for a protection order to be issued against Moyse. Defence lawyer Gene Zazelenchuk said his client would then want one against Buors. Harapiak declined, saying she didn't believe there were grounds for either side.
Outside court, Moyse suggested the charge wouldn't have gone to trial if he and Buors didn't work in the justice system. Rolston said the decision to prosecute Moyse wasn't malicious. Buors declined to comment.
Moyse, in an angry message left for Buors:
"I hope you get everything you deserve."
"Careful how you treat me. Think hard about what I know. Watch your tone."
"Quit hiding in your cyberworld. Just wait until we meet face to face."
Buors, in an angry email left for Moyse one day before she showed up unannounced at his RCMP station and he refused to let her in:
"I am putting you on notice if you contact me via email, text or phone or in any other manner one more time, I will get a restraining order against you or institute criminal harassment charges since you have been repeatedly told to leave me alone. I will not tolerate your abuse any further. Govern yourself accordingly."
Judge Christine Harapiak
"I am not convinced Ms. Buors was either criminally harassed or afraid for her personal safety."
"In this case, where communication between the parties is only partially reproduced for the court, and there is some evidence that the mean, petty and unco-operative conduct was two-sided, I am not prepared to find threatening conduct on the basis of the evidence before me."
"People occasionally behave badly when relationships break down. The Crown has asked that I infer threatening conduct from some of the language that Moyse used in text and email messaging. I am not prepared to do that."
"Moyse behaved badly, was rude and nasty and petulant. He threw virtual temper tantrums by emails and text message when he was ignored. Buors, however, was ignoring him. He has a legitimate reason to contact her for return of his goods and she was being unco-operative with him, and that left him feeling 'frustrated and exasperated,' as he so often noted during his testimony."
Excellent and well written article by Mike McIntyre! Interesting to read the quotes at the end. I agree with the verdict of acquittal as criminal harassment is extremely hard to prove and I also didn't see any evidence that she was fearful of him.