DATE: 20050909

DOCKET: C41056

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JULIUS OHENHEN (Appellant)

BEFORE:

WEILER, MacFARLAND and LAFORME

COUNSEL:

John Erikson

for the appellant Ohenhen

Ian D. Scott

for the respondent Crown

HEARD & RELEASED ORALLY:

September 7, 2005

On appeal from the judgment of Justice J. David McCombs of the Superior Court of Justice dated September 3, 1999.

E N D O R S E M E N T

[1] The appellant appeals from his conviction for criminal harassment contrary to s. 264 of the Criminal Code. He raises three grounds of appeal.

[2] The first ground of appeal is that the evidence of the appellant’s criminal record and past incarceration given by the complainant should not have been put to the jury.

[3] The trial judge ruled the proposed evidence admissible on the basis that it formed part of the threat made by the appellant to the complainant. In effect, he ruled that the probative value of the evidence was necessary to give the jury a complete picture and outweighed the prejudice to the appellant. The trial judge did not err in his ruling.

[4] In oral argument, the appellant submitted that when the evidence was brought out, the link between the appellant’s criminal record and the complainant’s reasonable fear for her safety, a necessary element of the offence of harassment, was never made explicit. The complainant testified that the appellant denied harassing her and said that someone was impersonating him in making the threatening abusive phone calls and in sending her a letter. At the same time, however, she said, the appellant showed her his criminal record for that very offence.

[5] The appellant did not testify at his trial. The defence put forward was that the complainant was not afraid of the appellant and that, at most, she was annoyed by his repeated communications.

[6] It was open to the jury to infer from the complainant’s evidence that the complainant had reason to disbelieve the appellant’s denial that he was the person who was harassing her and that she was reasonably afraid. The evidence of the appellant’s criminal record was relevant and was not before the jury solely for adducing evidence of the appellant’s bad character. The trial judge more than adequately instructed the jury as to the limited purpose of that evidence and what the jury could not do with that evidence. The first ground of appeal is dismissed.

[7] The second ground of appeal is that the trial judge erred in instructing the jury that they could return a verdict of guilty if they found that the appellant had “repeatedly communicated” with the complainant whereas the form of harassment charged in the indictment was that the appellant “engaged in conduct that caused her to fear for her safety.” In our opinion, communicating with a person over the telephone and by writing a letter causing them to fear for their safety is engaging in “conduct”. In saying this we recognize that repeatedly communicating is specifically set out in s. 264(1)(b). This ground of appeal is dismissed.

[8] The third ground of appeal is that the trial judge erred by failing to instruct the jury that proof beyond a reasonable doubt comes much closer to absolute certainty than to proof of probable or likely guilt, thereby, depriving the appellant of a fair trial. In our opinion, the jury could not have been left in any doubt about the meaning of the expression because the trial judge told them that probable or likely proof of guilt simply was not good enough. Further, he did not fall into the error of referring to the ordinary everyday meaning of the phrase reasonable doubt. Finally, we know that the jury was able to apply the principle of reasonable doubt because the appellant was acquitted of two of the three counts on the indictment.

[9] Accordingly, the appeal is dismissed.

“K.M. Weiler J.A.”

“J.L. MacFarland J.A.”

“H.S. LaForme J.A.”