COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) and NICHOLAS PAPAIOANNOU (Appellant)
BEFORE: McMURTRY C.J.O., GOUDGE AND BORINS JJ.A.
COUNSEL: Dragi Zekavica For the appellant
Thomas Galligan For the respondent Crown
HEARD: June 7, 2000
On appeal from the conviction by Pickett J. dated April 27, 1999 and on appeal from the sentence imposed by Pickett J. dated June 29, 1999.
E N D O R S E M E N T
[1] The appellant argues that issuing and serving civil court proceedings cannot constitute a breach of his probation order. Considering the substance of the statement of the claim and the background that preceded the issuance of it, we disagree. The proceedings in this case clearly constitute a communication with the complainants, were intended as such, and were intended to further harass them. The claim in question on its face is a frivolous and vexatious proceeding. Any protection to civil proceedings that may be offered by the Charter does not extend to a claim drafted in this way. The trial judge properly found the breach of the probation order.
[2] Secondly, the appellant argues that the re-laying of the charge here constitutes an abuse of process. No authority is offered in support. In our view, the re-laying of the charge in the circumstances of the simple mistake as was done here was entirely appropriate. See R. v. McArthur (1995), 102 C.C.C. (3d) 84 (Sask. C.A.).
3We would therefore dismiss the conviction appeal.
[4] As to sentence we see no error and would grant leave, but dismiss the appeal.
“R. McMurtry C.J.O."
“S.T. Goudge J.A.”
“S. Borins J.A.”