Ontario Criminal


Appeal

NEW TRIAL
Evidence of prior conduct in context of harassment charge presumptively admissible

Appeal by Crown from acquittal of accused on charge of criminal harassment. Complainant was former employee of accused. She left his employ on bad terms in 2010 because he provided poor reference for her when she applied for another job. After complainant left accused called her on numerous occasions and he left messages in which he said he missed her. Accused called in total of between 20 and 30 times and this forced her to change her phone number. He waited for her outside her home and he left gifts for her at home of her parents. Gifts continued even after she changed her phone number. Complainant went to police and they warned accused not to have any further contact with her. She was working at restaurant on March 27, 2013 and accused attended restaurant and he tried to get her attention and she ignored him. When complainant went to her car accused sped towards her in his vehicle. Accused followed her in his vehicle and complainant called her boyfriend on her cell phone. Trial judge found that there had been no overt threat and he described restaurant encounter as innocuous. Appeal allowed. Acquittal set aside. Judge erred in excluding content of telephone calls placed by accused to her prior to March 27 incident. Evidence of prior conduct in context of criminal harassment charge was presumptively admissible. Previous interactions between accused and complainant, that set backdrop for charge, had to be heard and evaluated to assess reasonableness of complainant’s fear. Judge also erred in his treatment of restaurant encounter, in which he excluded relevant evidence. His description of restaurant encounter, which he termed as being innocuous was illogical. Based on evidence that judge did accept, his acquittal was unreasonable. New trial was ordered to enable all of relevant evidence to be before court.

R. v. Deary (Jun. 18, 2014, Ont. S.C.J., Healey J., File No. CR-13-231-AP) 114 W.C.B. (2d) 5.

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