Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Is driver liable for jumpy passenger? O n the face of it, it's hard to see how Inga Richardson could have any realistic chance of succeeding in her action against Joey Sanayhie. The pair were living together as common law spouses when Rich- ardson jumped out of a car Sanayhie was driving down an Oshawa, Ont., road after they left a party. During the event, Richardson had drank "copious amounts of alcohol," according to a recent court ruling, and became agi- tated as the two fought while on the way home. At one point, she vowed to jump out of the car, a threat she eventually carried out that resulted in a traumatic brain injury. Richardson is now suing Sanayhie for breaching a duty of care and neg- ligence for allegedly having failed to slow the vehicle down or bring it to a stop once she had issued the threat. She also claimed he had failed, in his duties as designated driver, to monitor her drinking at the party. Thankfully, common sense has pre- vailed so far. In a recent ruling, Supe- rior Court Justice Edward Belobaba struck those parts of the claim dealing with Sanayhie's duties as designated driver. Noting Sanayhie didn't invite his partner to take the risk, that there was no paternalistic relationship of supervision and control between the two, and that Sanayhie wasn't offering a service to the public that led to Rich- ardson's drinking, Belobaba ruled he had no duty to monitor her drinking. "There is no evidence of any specific discussion or agreement wherein Joey promised to do so," Belobaba wrote. "Absent such agreement, Joey was un- der no obligation to monitor and limit Inga's alcohol consumption." Moreover, the judge said public policy considerations weighed against holding designated drivers responsible for their passengers' sobriety, particu- larly since doing so would create a ma- jor disincentive for people to take their drunk friends home. The ruling, however, leaves Rich- remaining ardson's claims intact. Given that she jumped out of the car, her case appears to have little chance of success. The notion that she should bear no responsibility for doing some- thing so obviously harmful to herself is incredulous, particularly since it would pass the onus onto Sanayhie. But, of course, the full facts of the case have yet to come out at trial. Could Richardson argue, for example, that Sanayhie was the aggressor in the argument and that she therefore felt threatened and had to get out? At the same time, does the fact that, accord- ing to reports, she had once jumped out of a boat in similar circumstances create some obligation on Sanayhie to take precautions? In purely logical terms, it seems rea- sonable to argue that a driver dealing with a passenger gunning to jump out might want to slow down. But legally speaking, it's hard to see how a driver could incur an obligation to do so ex- cept in very exceptional circumstanc- es, such as cases where a passenger feels threatened. It will be interesting, then, to see how Richardson v. Sanayhie plays out. It's definitely a case to watch. — Glenn Kauth I have written before about complainants who lie in domes- tics — people who have specific agendas when they bring forward their cases. Maybe they want the house, the kids, the car or all three. The accused and the com- plainant often come from the same dynamic milieu. One day, one partner is the complainant; the next day, he's the accused. There may be attention- seeking conduct on the part of the alleged victim in a criminal harassment case. At the same time, the complainant may be encouraging the accused per- son's interest, intentionally or unconsciously. Some of the complainants in criminal harassment cases seem to take inordinate inter- est in the person they allege is victimizing them. They save notes. Some go as far as accept- ing collect calls from jail. They When does romance become criminal harassment? D omestic different cases. assaults are from other fail to definitively end the relationship. In some cases, they e-mail their former be- loved and may even post pic- tures of themselves with the accused on Facebook. I have seen all of these things. So just what is criminal harassment? Do you know it when you see it? What distin- guishes romance from harass- A Criminal Mind By Rosalind Conway It's not enough for a com- plainant to be harassed. Victims must actually be afraid for their a good choice for resolving a charge of criminal harassment in a domestic case. Peace bonds should be a consideration because the real intention may not be to ha- rass; it may be to romance. The leading case is R. v. Sillipp, in which the Alberta Court of Appeal set out what has been accepted as the test The Criminal Code sets out different ways in which criminal harassment can occur: by repeatedly following, communicating with, watching, besetting or engaging in threatening conduct to the complainant or the complainant's family. ment? When does sending choc- olates and flowers cross the line and become criminal conduct? The Criminal Code sets out different ways in which crimi- nal harassment can occur: by repeatedly following, commu- nicating with, watching, beset- ting or engaging in threatening conduct to the complainant or the complainant's family. safety, and this fear must be rea- sonable in the circumstances. There is a separate offence of harassing telephone calls in s. 372(3) of the Criminal Code dealing with repeated attempts to harass the victim. There's no requirement that complain- ants reasonably fear for their safety. It's a straight summary conviction offence. This can be www.lawtimesnews.com for finding that criminal ha- rassment has occurred. In that case, the court found five re- quirements: conduct prohib- ited by s. 264 has occurred; the complainant was harassed; the accused knew or was reckless as to whether the complainant was harassed; the complainant must actually be fearful; and this fear must be reasonable in June 7, 2010 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. all of the circumstances. Conduct may be rather am- biguous, so you have to look to a pre-existing relationship, al- though the lack of one doesn't demand that there be a convic- tion. The amount of time that has passed since the parties were involved may be relevant, but the accused may sincerely want to resume a relationship. Factors weighing in favour of the court finding the conduct was harassment include wheth- er the actions were threaten- ing or inappropriately sexual; whether the complainant took security measures, changed phone numbers or moved; the frequency of the calls or visits; and a pre-existing court order. It's not enough that the com- plainant was vexed, disquieted or annoyed. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca.

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