DATE: 20010926 DOCKET: C36176

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. COURTNEY HUGH McLEAN (Appellant)

BEFORE:

CHARRON, SHARPE and SIMMONS JJ.A.

COUNSEL:

Courtney Hugh McLean,

the appellant, in person

Leslie Paine,

for the respondent

HEARD:

September 24, 2001

On appeal from his conviction by Justice Clair B. Marchand on March 19, 2001 and from the sentence imposed on April 3, 2001

E N D O R S E M E N T

[1] It is our view that the offence of criminal harassment has not been made out based on the facts found by the trial judge. Crucial aspects of the appellant’s interaction with the complainant on the day in question (e.g. phone calls to her) cannot be viewed as criminal harassment in light of the trial judge’s express finding that the complainant had lied and that the appellant had been in her apartment with her permission immediately before the incident. Consequently, the convictions for criminal harassment and for break and enter with intent to commit criminal harassment cannot stand. The appeal is allowed, those two convictions are quashed. The remaining convictions and sentence (assault, mischief and breach of probation) remain.

(signed) “Louise Charron J.A.”

(signed) “Robert J. Sharpe J.A.”

(signed) “Janet Simmons J.A.”