Ohenhen v. Her Majesty the Queen [Indexed as: R. v. Ohenhen]

77 O.R. (3d) 570

[2005] O.J. No. 4072

Docket: C41405

Court of Appeal for Ontario,

Rosenberg, MacFarland and Rouleau JJ.A.

September 27, 2005

Criminal law -- Criminal harassment -- Elements of offence -- Context of "repeatedly" -- Two communications may be sufficient to constitute "repeatedly" communicating -- Whether there has been repeated communication constituting question of fact to be resolved in context of entire circumstances of case -- Criminal Code, R.S.C. 1985, c. C-46, s. 264(2)(b).

Criminal law -- Sentencing -- Criminal harassment -- Accused with lengthy criminal record and prior conviction for threatening same complainant receiving sentence of 18 months' incarceration (in addition to pre-trial custody) and two years' probation for criminal harassment -- Leave to appeal sentence denied. [page571]

The accused was convicted of criminally harassing F by repeatedly communicating with her directly or indirectly, contrary to s. 264(2)(b) of the Criminal Code. He had a prior conviction for uttering threats to F, resulting from a number of threatening calls and a message left on her answering machine. Several years after that conviction, F received a letter from the accused with the return address of Oakridge Division Hospital in Penetanguishene. Eighteen months later, she received a second letter from the accused, postmarked Toronto. In charging the jury on the elements of the offence in s. 264(2)(b), the trial judge stated that to "repeatedly" communicate with another person means to communicate more than once. The accused was sentenced to 18 months' imprisonment, in addition to time spent in pre-trial custody, followed by two years' probation. The accused appealed his conviction and his sentence.

Held, the appeal should be dismissed.

Conduct which occurs more than once can, depending on the circumstances of the case, constitute "repeated" conduct or conduct which is "repeatedly" done. It is unnecessary that there be a minimum of three events or communications. "Repeatedly" obviously means more than once but not necessarily more than twice. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and the accused. It is in this context that a determination will be made as to whether there has been repeated communication. On the facts of this case, it was clear that neither of the communications could be characterized as innocuous or accidental. In the context in which they were made, these two communications would be sufficient to constitute "repeatedly" communicating as set out in s. 264(2)(b).

The sentence imposed, taking into account pre-trial custody, was the equivalent of three years' imprisonment (18 months' in addition to time served) followed by two years' probation. The accused had an extensive record of violence and weapons offences. The sentence was manifestly fit. Given that the accused's sentence has already been served, leave to appeal the sentence was denied.

APPEAL from the conviction entered by Van Melle J. of the Superior Court of Justice, sitting with a jury, on October 23, 2003 and the sentence imposed on November 3, 2003 for criminal harassment. [page572]

R. v. Belcher, [1998] O.J. No. 137, 50 O.T.C. 189, 37 W.C.B. (2d) 198 (Gen. Div.); R. v. Lafreniere, [1994] O.J. No. 437, 22 W.C.B. (2d) 519 (C.J. Prov. Div.); R. v. M.R.W., [1999] B.C.J. No. 2149, 44 W.C.B. (2d) 200 (S.C.); R. v. Ryback, 1996 1833 (BC CA), [1996] B.C.J. No. 285, 105 C.C.C. (3d) 240, 47 C.R. (4th) 108 (C.A.) [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 135, 107 C.C.C. (3d) vi], consd Other cases referred to R. v. Davis, 1999 638 (SCC), [1999] 3 S.C.R. 759, [1999] S.C.J. No. 67, 182 Nfld. & P.E.I.R. 78, 179 D.L.R. (4th) 385, 248 N.R. 44, 554 A.P.R. 78, 139 C.C.C. (3d) 193, 29 C.R. (5th) 1; R. v. Multiform Manufacturing Co., 1990 79 (SCC), [1990] 2 S.C.R. 624, [1990] S.C.J. No. 83, 113 N.R. 373, 1 C.B.R. (3d) 290, 58 C.C.C. (3d) 257, 79 C.R. (3d) 390 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 109, 264 [as am.], 264.1(1)

John Erickson, for appellant. Amy Alyea, for respondent.

The judgment of the court was delivered by

MACFARLAND J.A.: --

Overview

[1] The appellant was charged on a two-count indictment. The first count charged that on February 6, 2003, he unlawfully threatened D.F. with bodily harm, contrary to s. 264.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. The second count charged that during an 18-month period ending on February 6, 2003, the appellant criminally harassed D.F. by repeatedly communicating with her directly or indirectly, contrary to s. 264(2)(b) of the Criminal Code.

[2] The appellant was tried by judge and jury. He was acquitted of threatening bodily harm and convicted of criminal harassment. The appellant was sentenced to 18 months' imprisonment in addition to nine months of pre-trial custody, for which he was credited on a two-for-one basis, to be followed by two years' probation. As well, a s. 109 order was imposed for a period of ten years after his release from custody. Mr. Ohenhen appeals against his conviction and sentence.

Facts

[3] The facts giving rise to this appeal are as follows. The complainant, who was 28 years old at the time of trial, met the appellant in 1990 when she was 15 years old and when she worked at her family's booth at the Canadian National Exhibition ("CNE") in Toronto. The appellant also worked at the CNE. He was a couple of years older than the complainant. He hung around and asked her for her phone number, which she gave to him. The complainant testified that she did so to get him to leave. She said she was "young" and "naïve" at the time and his loitering made her "a little uncomfortable". She planned to tell him that she was not interested if he called. She did not see him again after the CNE ended, except for court appearances in relation to 1992 charges (detailed below) and the charges which are the subject of this appeal.

[4] The appellant's initial calls to the complainant were sporadic and their tone "fairly pleasant". The complainant told him that she was not interested in him. She believed he was aware she was dating someone because he had seen her with her boyfriend at [page573] the CNE. The appellant was "very persistent"; he continued to telephone her and the tone of the calls "became less pleasant quite quickly". His calls became aggressive, threatening and derogatory. The complainant initially responded by being rude in return, but soon became concerned about the appellant's mental stability and changed her approach. She tried to explain to him that he should not be rude to someone with whom he wanted to be friends. The threatening calls nonetheless continued. The complainant was alarmed, confused and scared and contacted the police in the hope they would get the appellant to stop bothering her. The police told her they would warn the appellant to stop telephoning her. Soon after, in November 1992, she received a message on her answering machine in which the appellant threatened to rape and kill her and bomb her house and family. She immediately contacted the police and the appellant was arrested and charged. The appellant was convicted of uttering a threat and was sentenced to 30 days in jail followed by three years probation. One of the terms of the probation order was that he not have any communication with the complainant. Shortly after that trial, D.F. received a card from the appellant which said "I hope you had a Merry Christmas". She says she was so frustrated she just threw it away and "moved on" with her life.

[5] The complainant heard nothing further from the appellant until September or October 2001. She received a letter in the mail with a handwritten heart on it, within which were the words "Get back to me". The return address was from the appellant at Oakridges Division Hospital in Penetanguishene.

[6] D.F. testified that receiving the letter caused her to feel fearful and frustrated. She interpreted the letter as a threat as she inferred that he was in "a mental hospital for the criminally insane" and he appeared to believe she "belonged" to him.

[7] She contacted the police to determine an appropriate course of action. After the police photocopied the letter, it was decided the best way to handle the situation was to have the letter resealed in its envelope, marked "return to sender" and mailed back to the institution. The letter caused her to feel apprehensive and nervous.

[8] On February 6, 2003, some 18 months later, D.F. received a second letter from the appellant. She immediately recognized his handwriting and was "frustrated, upset and scared". This time, the letter was postmarked from Toronto and read:

D.F., you know it was Quicy who threatened you on three way I had sit down in jail for you because of your error I clear this up [page574]

[9] The appellant included the complainant's address at the bottom of the note. The complainant took the letter to mean that the appellant was blaming her for the time he spent in jail and she considered the letter another threat. To her "clear this up" meant that he "was going to get revenge with me, he was going to harm me". She was more alarmed on receipt of this letter because she assumed from the postmark that the appellant was no longer confined to the mental health facility and could be near her home. She immediately called police and the appellant was charged with the offences set out in the indictment.

[10] The principal issue raised on this appeal is that the trial judge erred when she instructed the jury that to do an act "repeatedly" means to do it "more than once".

Analysis

(1) Whether sending two letters over the span of 18 months constitutes "repeatedly communicating".

[11] Section 264 of the Criminal Code provides:

264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

[12] The appellant submits that the decision of the British Columbia Court of Appeal in R. v. Ryback, 1996 1833 (BC CA), [1996] B.C.J. No. 285, 105 C.C.C. (3d) 240 (C.A.), leave to appeal to the Supreme Court refused [1996] S.C.C.A. No. 135, 107 C.C.C. (3d) vi, which decision was followed in R. v. M.R.W., [1999] B.C.J. No. 2149, 44 W.C.B. (2d) 200 (S.C.), is directly on point and should be applied and followed by this court.

[13] In Ryback, the accused was charged with engaging in conduct, "between December 1, 1993 and February 15, 1994, ... which caused Lourie Hodgins reason to fear for her safety in that [page575] he did repeatedly communicate with her, contrary to Section 264 of the Criminal Code" [See Note 1 at the end of the document]. Between February 15, 1992, when the complainant in that case first noticed Mr. Ryback in the grocery store where she worked, and February 14, 1994, there were in excess of 11 occasions when Mr. Ryback approached her either directly or through others, or sat in his truck outside the store where she worked and stared at her through the windows. The specific conduct giving rise to the charges before the court occurred between December 1, 1993 and February 15, 1994. As the court noted at p. 248 C.C.C. of the judgment:

The specific conduct alleged to constitute harassment on the part of the appellant involved the following three instances of unwanted communication with the complainant:

(1) the delivery of the package of presents, accompanied by a note, a week before Christmas;

(2) the delivery of the dinner invitation a week before Valentine's Day; and

(3) the appellant's personal appearance at the complainant's house on Valentine's Day.

[14] One of the grounds of appeal in Ryback was whether the trial judge erred in finding that the appellant's conduct amounted to "repeatedly communicating". It was the appellant's position that the three events set out above were not sufficient to constitute "repeatedly communicating" within the meaning of s. 264.

[15] In reviewing the Crown's submissions, the court stated (at p. 250 C.C.C.):

[C]ounsel for the Crown says that the three specific incidents referred to by the appellant, viewed in their proper context, are enough to amount to repeated communication. He also says that the other incidents referred to are "communications", namely, staring through the window, loitering in the parking lot, coming in to the store and contacting the father on the telephone. "Repeatedly" means conduct that is repeated on more than one occasion. Three communications would seem to be the minimum number sufficient to justify being described as "repeatedly".

[16] In the paragraph immediately following, the court notes (at p. 250 C.C.C.):

I am of the view that counsel for the Crown is correct in his submission that the three specific incidents of communication must be viewed in their context to determine whether they constitute repeated communication for the purposes of s. 264. The main purpose of the so-called "stalking" legislation was to enable the police to take timely action that would save women [page576] from being the victims of violence before it was too late. Here the appellant was a total stranger. The complainant knew nothing about him, while it appears he had a considerable amount of information about her. He persistently and irrationally pursued the complainant over a two-year period, except the time when she was off on maternity leave. His behaviour gave cause for alarm. A common sense approach would clearly indicate that in the circumstances of this case, three times should be construed as amounting to repeated communication. The police were justified in acting when they put a stop to it.

[17] I do not interpret these reasons to say anything other than that in the circumstances of that case the three incidents which were the subject of the charge were sufficient to meet the charge of "repeatedly communicating". The statement that "three communications would seem to be the minimum number sufficient to justify being described as 'repeatedly'" was nothing more than a Crown submission and was not specifically adopted by the court.

[18] In R. v. M.R.W., at paragraph 22, the court summarized the facts which gave rise to the charges in that case as follows:

There were at least six communications by the appellant while he was in Vernon between April 23rd and 25th, 1998, which must be considered. Those included his first call to the Royal Bank; his attendance at the residence where he understood Ms. D.W. used to live, and upon the neighbours; his attendance upon the T.V. store where he understood her son P.W. was employed; his attendance at the Royal Bank; his return to what he understood was a residence in which Ms. D.W. used to reside; and his telephone call on April 25th to B.P., a brother of Ms. D.W.

[19] In the next paragraph, the court stated [at para. 23]:

What constitutes "repeated communication" was addressed by Finch J.A. in R. v. Ryback (1996), 1996 1833 (BC CA), 105 C.C.C. (3d) 240 (B.C.C.A.) at p. 250:

[46] ... "Repeatedly" means conduct that is repeated on more than one occasion. Three communications would seem to be the minimum number sufficient to justify being described as "repeatedly".

[47] I am of the view that counsel for the Crown is correct. . .

The court went on to quote the balance of para. 47 of the judgment in Ryback which I have set out in full above.

[20] Again, I do not consider M.R.W. any more authority for the proposition that there must be a minimum of three communications to justify being described as "repeatedly" any more than Ryback is authority for that proposition and for the same reasons.

[21] In the alternative, counsel for the appellant points to cases which have considered the word "repeatedly" and judicially interpreted its meaning. In R. v. Belcher, [1998] O.J. No. 137, 50 O.T.C. 189 (Gen. Div.) at para. 20, the court concluded that in the circumstances of that case, the word "repeatedly" should be equated with the word "persistently". Mr. Belcher appealed his [page577] conviction on two counts of criminal harassment. Belcher had been a friend of the complainant's family in the 1970s. In 1993, the complainant claimed that Belcher had indecently assaulted her between 1970 and 1975. He was convicted of the offence in May 1996. He appealed the conviction and was released on a recognizance that prohibited him from associating with any member of the complainant's family. In January 1997, the complainant met Belcher by chance while shopping. He glanced at her and then remained in his car while she shopped. He moved his car while she shopped in various stores so that he could have a better view of her. The complainant then drove some distance to a gas station and thought she saw Belcher follow her. When she stopped, she saw Belcher drive by and moments later her brother drove into the station and told her that Belcher followed her. Belcher drove to a nearby hotel and parked there. When the complainant drove by, she saw his car. She then drove to a restaurant while Belcher followed her and parked at a nearby community centre where he could not see her. Belcher then drove by the restaurant and the complainant noticed Belcher's car parked at the community centre as she drove home. The trial judge was satisfied beyond a reasonable doubt that Belcher's conduct was persistent, overly frequent and was an ongoing course of conduct under s. 264(2)(a) of the Criminal Code.

[22] Before the summary conviction appeal judge, Belcher argued that this single occasion cannot constitute "repeated" following. In her thoughtful reasons, Eberhard J. reviewed some of the jurisprudence where the word "repeatedly", as used in s. 264, has been considered. She concluded in para. 20 of her reasons as follows:

I am persuaded by a review of the authorities cited that Parliament and the courts have each engaged in an effort to name as criminal conduct, that conduct from which the community ought to be protected, while avoiding the criminalizing of similar conduct that does not represent the same peril or conduct which may be mistaken for or experienced as harassment but is in fact quite innocuous and well within the freedoms cherished in this society. As stated in Lafreniere, "repeatedly" is clearly meant to define conduct that occurs "more than once". This is not because the conduct presents less peril because it only occurs once. It is no comfort to a person being stalked that it is the first time. It does not appear sensible, therefore, to interpret "repeatedly" to require conduct occurring "over and over again" separated by any particular amount of time. Rather, I am persuaded, the intended definition for the word "repeatedly" in this context, is its meaning that equates to "persistently". When one as sesses whether conduct falls within the definition of "repeatedly", one can guard against the criminalizing of innocuous behaviour by assessing the persistence of the behaviour, the context in which it is committed, and other factors that will assist in segregating criminal stalking from "following" a person in an annoying, irritating, perhaps even prolonged but not perilous manner. An examination of "following" conduct [page578] that arbitrarily demands not only persistent "following" which demonstrates resolve to do so; not only a perseverance such as was exhibited on the facts of this case; but also insisting that the definition include a requirement that such persistence be shown on a number of occasions separated by time, is neither a necessary nor a sensible definition of the word "repeatedly" having regard to the intention of Parliament and balancing of interests demanded by this section.

[23] The court in Belcher was concerned with s. 264(2)(a) of the Code which deals with repeatedly following from place to place.

[24] One of the first cases to consider the language of s. 264 after its coming into force in August 1993 was R. v. Lafreniere, [1994] O.J. No. 437, 22 W.C.B. (2d) 519 (C.J. Prov. Div.), a decision of Greco J. At para. 9 of his reasons, the court notes:

Subsections 2(a) and (b) use the word "repeatedly" which in my view at least refers to conduct which is engaged in persistently by the accused person. It is obvious as well that a result must flow from the persistent conduct engaged in in order for the conduct to be regarded as criminal, that result being that in all the circumstances, the persistent conduct "reasonably" causes the victim to fear for his or her safety.

[T]he section, inter alia, is aimed at preventing repeated communications or repeated conduct, which are, . . . fear inducing to the recipient, by . . . [a] person the complainant wants nothing to do with . . . .

[O]ne must of necessity determine what is meant by the word "repeatedly". To begin, it is obvious that once is not enough to come within the meaning of the word. "Repeatedly" obviously means more than once. It is put that the conduct must be overly frequent in all the circumstances; that whether the conduct is overly frequent is a matter of fact to be determined by the court on a case by case basis; that there is no hard and fast rule as to what will in every case, numerically at least, constitute conduct which is overly frequent. The facts of each case will make the law, the law will not make the facts. Common sense should permit the trier of fact to arrive at the conclusion that the conduct was repeatedly engaged in or was not repeatedly engaged in.

[25] It appears from these reasons that in both Belcher and Lafreniere the court was of the view that the word "repeatedly" equated with the word "persistently". Counsel for the appellant submits in argument and in his factum that the root of the word "persistently" is "persistent", which the Canadian Oxford Dictionary, 1st ed. defines, as "constantly repeated". On this basis, he submits that the appellant's actions -- in sending only two letters some 18 months apart -- are not contrary to s. 264(2)(b) because it cannot be said they were "constantly repeated".

[26] In addition, it is submitted on behalf of the appellant that other cases have recognized that the word "repeatedly" is an adverb which is related to the adjective "repeated" which is, itself, defined in the Canadian Oxford Dictionary and the New Shorter Oxford Dictionary, 5th ed., as "frequent; done or said again and again". He submits an act which is done "repeatedly" [page579] must be done at least three times; once for it to be done, twice for it to be done again and a third time for it to be done again and again. I disagree.

[27] The first definition of "persistently" listed in the Canadian Oxford Dictionary is: "continuing in spite of obstacles, attempts at control, etc.; persisting". The verb persist is defined, as inter alia, "continuing firmly or obstinately (in an opinion or course of action) esp. despite obstacles, remonstrance, etc". Moreover, I note that while the Canadian Oxford Dictionary defines "repeated" in the following terms "frequent; done or said again and again (ignored her repeated attempts to convince him)", the definition of the verb "repeat" from which the adverbial form is derived is replete with a number of definitions including: "say or do over again . . . recur; appear again perhaps several times (a repeating pattern) . . . do or say something over again".

[28] The Shorter Oxford English Dictionary, 3rd ed., defines "repeat", inter alia, as follows: "To say or utter over again, to reiterate. To say over, recite. To say or utter again after another or others . . . To say again what one has already said".

[29] The Standard Jury Instruction -- Criminal Harassment, Final 264, approved by the Superior Court of Justice Criminal Jury Trial Project, provides:

(Where conduct is repeated communication)

To repeatedly communicate with another person means to communicate with them more than once. The communication may be direct, or it may be indirect. It may, but does not have to be in the same words or by the same means each time.

[30] The Supreme Court of Canada instructs us in R. v. Multiform Manufacturing Co., 1990 79 (SCC), [1990] 2 S.C.R. 624, [1990] S.C.J. No. 83, 58 C.C.C. (3d) 257, at pp. 630-31 S.C.R., pp. 261-62 C.C.C:

When the courts are called upon to interpret a statute, their task is to discover the intention of Parliament. When the words used in a statute are clear and unambiguous, no further step is needed to identify the intention of Parliament. There is no need for further construction when Parliament has clearly expressed its intention in the words it has used in the statute. As Maxwell stated in the Interpretation of Statues (12th ed. 1969), at pp. 28-29:

If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. "The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, references to cases."

The rule of construction is "to intend the Legislature to have meant what they have actually expressed." The object of all interpretation is to [page580] discover the intention of Parliament, "but the intention of Parliament must be deduced from the language used," for "it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law."

Or as Professor P.A. C"té succinctly puts it in The Interpretation of Legislation in Canada (1984), at p. 2:

It is said that when an act is clear there is no need to interpret it: a simple reading suffices.

In R. v. Davis, 1999 638 (SCC), [1999] 3 S.C.R. 759, [1999] S.C.J. No. 67, 139 C.C.C. (3d) 193, at para. 42, the court states:

In Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, 154 D.L.R. (4th) 193, the court adopted the following passage from Driedger's Construction of Statutes (2nd ed. 1983) as the general approach to be taken to statutory construction:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[31] In my view, the dictionary definitions of the words "repeat" and "repeated", from which the adverbial form "repeatedly" is derived, lead me to conclude that conduct which occurs more than once can, depending on the circumstances of the case, constitute "repeated" conduct or conduct which is "repeatedly" done and the section is met. In my view, it is unnecessary that there be a minimum of three events or communications. "Repeatedly" obviously means more than once but not necessarily more than twice.

[32] While one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(c) and (d), it will not be sufficient to satisfy s. 264(2)(b). More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and should not be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs more than once, in my view, the actus reus can be made out. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and accused. It is in this context that a determination will be made as to whether there has been repeated communication. On the facts of this case, it was clear that neither of the communications could be characterized as i nnocuous or accidental. In the context in which they were made, these two communications would be [page581] sufficient to constitute "repeatedly" communicating as set out in s. 264(2) (b). In my view, it was entirely appropriate for the trial judge to use the standard charge language on this point.

[33] Although not in issue on the facts of this case, trial judges should be cautious in using the standard charge language in all cases. It seems to me that defining "repeatedly" as being more than one communication is not always appropriate. In some cases, the jury will have to consider the context in which the communications were made, the intent of the accused and possibly other factors to determine whether the communications were repeatedly made or were innocuous or accidental. Perhaps a more appropriate instruction would be to advise the jury that communication that occurs more than once can constitute repeated communications depending on the context and circumstances in which they were made.

[34] In the result, therefore, I would give no effect to the first and principal ground of appeal.

(2) Other grounds of appeal

[35] Next, the appellant argues that on the facts, because the complainant returned the first letter after resealing it on the advice of the police, there was no evidence that the appellant knew his second letter was a "repeated" communication. The simple answer to this question is that if he thought the first letter had not reached her, why did he send the second letter to the same address? There was no evidence before the court to the effect that the appellant was of the belief the first letter had not reached the complainant; he did not testify.

[36] Thirdly, the appellant argues that the Crown's closing address was "inflammatory" in two respects. Crown counsel asked the jury to convict the appellant in order to safeguard the complainant from further conduct of a similar nature by the appellant. In other words, the jury was invited to convict the appellant on the basis of what he might do in the future.

[37] The second objection to the Crown's address related to the disguise the complainant was permitted to wear while giving evidence. The court permitted the complainant to testify while wearing a wig and glasses. She was concerned about the appellant's ability to recognize her and wished to minimize his ability to do so. The appellant submits that since the complainant was disguised and the jury had not been told of this, it was "unfair" for the Crown to ask the appellant questions about how she felt coming to court and being required to testify in the appellant's presence. [page582]

[38] In respect to the first aspect of this objection, I am of the view that Crown counsel ought not to have asked the jury to convict in order to safeguard the complainant in the future. Nevertheless, on the particular facts of this case, I am not persuaded that having done so could reasonably be considered to have had any effect on the verdict. Overall, the trial judge's charge made perfectly clear the essential elements of each of the charges before the court and basis on which the jury could convict the appellant.

[39] As to the second objection, the disguise permitted was a minor one. The wig and glasses would not change the complainant's physical stature, her facial features or the colour of her eyes. The Crown was obligated to prove that the complainant was harassed and reasonably feared for her safety. In my view, the questions were proper and I would give no effect to this ground of appeal.

[40] The appellant also objects to the trial judge's charge on reasonable doubt. Taken as a whole, the charge in relation to the presumption of innocence and reasonable doubt was adequate and fair. I would reject this ground of appeal.

(3) Sentence appeal

[41] Lastly, the appellant requests leave to appeal his sentence and if leave is granted, appeals on the basis that in all the circumstances, his sentence is overly harsh. Counsel advised the court that he has served his sentence.

[42] The appellant was sentenced, in effect, to three years' imprisonment. After being given credit for the time he spent in pre-trial custody, he was required to serve a further 18 months. The sentence was to be followed by two years' probation. The appellant has an extensive record dating back to 1990; it includes weapons offences, aggravated assault, assault with a weapon and at least four convictions for uttering threats. In my view, the sentence was manifestly fit in all the circumstances and I would not interfere with it. In view of the fact, however, that the sentence has been served, I would deny leave to appeal sentence.

Disposition

[43] For these reasons, I would dismiss the appeal from conviction and refuse leave to appeal sentence.

Appeal dismissed. [page583]

Notes

Note 1: The facts which gave rise to the charges in Ryback are set out in paras. 7 through 22 in the reasons of Finch J.A. (as he then was).