DATE: 20040506
DOCKET: C31672

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. ROBERT NADIR (Appellant)

BEFORE:

DOHERTY, ARMSTRONG and LANG JJ.A.

COUNSEL:

Michael Davies for the appellant

Grace Choi for the respondent

HEARD:

April 29, 2004

On appeal from the judgment of Rutherford J., of the Summary Appeal Court, dated February 4, 1999.

ENDORSEMENT

[1] The applicant/appellant was convicted of making harassing telephone calls contrary to s. 372(3) of the Criminal Code. His conviction appeal to the Superior Court was dismissed. He now seeks leave to appeal to this court. This court can consider only questions of law.

[2] There are four grounds of appeal.

The Limitation Period

[3] The offence of making harassing phone calls contrary to s. 372(3) is by its very nature a continuing one that involves a course of conduct. On the trial judge's finding of fact, the harassing course of conduct engaged in by the applicant/appellant began more than six months prior to the laying of the information, but continued through dates well within six months of the laying of the information. Section 786(2) does not bar a prosecution for a course of events which begins prior to six months before the laying of the information, but is ongoing during the six months prior to the laying of the information. As long as the Crown could prove that the harassing course of conduct was ongoing in the six months prior to the laying of the information, s. 686(2) did not require that the time frame described in the information be limited to the six months prior to the charge and there was no need to amend this information.

The Interpretation of Section 372(3)

[4] Counsel for the applicant/appellant next argued that the number of telephone calls made by the applicant/appellant, particularly the limited number which were found to be for the sole purpose of harassing the recipients, could not constitute "repeated telephone calls" for the purposes of s. 372(3). Counsel acknowledged that the determination of whether the conduct amounted to "repeated telephone calls" was a factual one. As long as there was some evidence from which the trial judge could conclude that the calls were "repeated", his finding does not raise a question of law and cannot be reviewed in this court. There was some evidence that the applicant/appellant made several calls.

[5] The third ground of appeal rests on the contention that the harassing phone calls had to be actually received by the persons whom the maker of the telephone calls intended to harass. Assuming without deciding that this is a proper interpretation of s. 372(3), the trial judge made the finding that some of the calls were directed specifically at one or more of the individuals named in the information and others were directed at the individuals collectively. There was ample evidence to support this finding. Given the entirety of the circumstances, there was also evidence to support his conclusion that the applicant/appellant must have known that his harassing calls would come to the attention of the three individuals described in the information. This finding of fact is not open to challenge on this appeal.

The Lawful Excuse Defence

[6] The final ground of appeal, and apparently the only ground argued before the Summary Conviction Appeal Court, arises out of the trial judge's finding that the defence of lawful excuse referred to in s. 372(3) could not apply in the circumstances of this case. The Summary Conviction Appeal Court judge concluded that the trial judge was wrong in law in his analysis of the section, but went on to hold that the error caused no substantial wrong as there was no evidence of lawful excuse in respect of at least some of the harassing phone calls made by the applicant/appellant. We see the difference between the trial judge and Summary Conviction Appeal Court judge as essentially one of semantics. The trial judge made an explicit finding of fact that several of the calls were made for the sole purpose of harassing the recipients. He said:

… A large number of calls and messages, which based upon their content, the tone, the timing and history, could only be viewed by the court, or anyone, as being for the sole purpose of harassing or indeed threatening the complainants.

[7] We were referred to no evidence which could provide any support for a lawful excuse defence in respect of calls made exclusively for the purpose of harassing the recipients. Indeed, it is difficult to imagine a situation in which telephone calls made exclusively for the purpose of harassment could be sheltered under a lawful excuse defence.

[8] Leave to appeal is granted and the appeal is dismissed.

"Doherty J.A."
"Robert P. Armstrong J.A."
"S. Lang J.A."