Background
Sandy Benyamin was convicted of criminal harassment of his sister-in-law by Justice Robert Wright of the Ontario Court of Justice on January 26, 2023, and sentenced on August 17, 2023. The conviction arose from Benyamin’s repeated communications with the complainant, which caused her to reasonably fear for the safety of herself and her family. Among the harassing conduct, on a single 24-hour period he called the complainant at least 30 times at her workplace and posted numerous messages on her business website.
Benyamin appealed to the Summary Conviction Appeal Court, where Justice Paul B. Schabas of the Superior Court of Justice dismissed the appeal on November 12, 2024. Benyamin then sought leave to appeal to the Court of Appeal for Ontario under s. 839 of the Criminal Code, R.S.C., 1985, c. C-46, arguing that the Summary Conviction Appeal Court committed a clear error of law.
The Court’s Holding
The Court of Appeal, composed of George, Monahan, and Pomerance JJ.A., denied leave to appeal. On the first ground — that the communications were made with lawful authority — the court found no merit, holding that there is simply no lawful authority for communications that are aimed at harassment, regardless of the applicant’s framing.
On the second ground — that the complainant’s fear was not objectively reasonable — the court likewise found no basis to grant leave. The Summary Conviction Appeal Court had properly deferred to the trial judge’s factual findings on subjective fear and applied the correct legal principles in assessing objective reasonableness. Given the volume, timing, and content of the communications, as well as an earlier threat to harm the complainant’s child, the appellate court’s upholding of the reasonable-fear finding was well open to it. Citing R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641, the court found no clear error of law warranting leave.
Key Takeaways
- There is no “lawful authority” justification for communications that are designed to harass; the intent to harass is itself sufficient to negate any claim of lawful authority.
- On a leave application under s. 839 of the Criminal Code, the applicant must identify a clear error of law — deferential factual findings by lower courts will not suffice to meet that threshold.
- In assessing objectively reasonable fear under the criminal harassment provisions, courts may consider the cumulative pattern of conduct, including prior threats, not merely individual incidents in isolation.
Why It Matters
This decision reinforces the narrow scope of review available on summary conviction leave applications in Ontario, confirming that appellate courts will not intervene absent a clear legal error. It also underscores that repeated, high-volume communications to a complainant — particularly when combined with prior threatening conduct — will readily satisfy the objective reasonableness component of criminal harassment, leaving would-be appellants with little traction on that ground.