DATE: 20050412

DOCKET: C42452

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MARCEL BROSSARD (Appellant)

BEFORE:

LASKIN, BLAIR, and LANG JJ.A.

COUNSEL:

Michael J. Rombis

for the appellant

Christine Tier

for the respondent

HEARD:

April 7, 2005

On appeal from a conviction for criminal harassment by the Honourable Madam Justice Austin of the Ontario Court of Justice on June 3, 2004, and from the sentence imposed on June 17, 2004.

E N D O R S E M E N T

[1] Mr. Brossard appeals from his conviction for criminal harassment, and applies for leave to appeal, and if leave is granted, appeals from the sentence imposed on that charge of fifteen months in custody plus three months pre-trial custody.

[2] The central ground of appeal with respect to conviction is that the verdict was unreasonable. The appellant submits that it was unreasonable because there was no evidence to support the trial judge’s finding that the complainant feared for her safety or that of her family as a result of the accused’s conduct. We do not agree.

[3] The trial judge was very alert to the importance of the issue of the impact of the accused’s conduct on the complainant and of the question whether it caused her to fear for her safety, both from a subjective and an objective perspective. In a very thorough, thoughtful, and well-reasoned decision, she grappled with this principal issue and found that the evidence established “there was a fear on [the complainant’s] part and there was a significant impact of being harassed”. She then applied the appropriate principles of law to the facts as she found them, and concluded that each of the elements of the offence had been made out and that the Crown’s burden of proof beyond a reasonable doubt had been met.

[4] There was ample evidence to support her findings and her conclusion. The appeal from conviction must be dismissed.

[5] We would not interfere with the sentence imposed, either.

[6] After the appellant was convicted of criminal harassment and breach of probation at trial, he pleaded guilty to three further charges of breaching court orders that resulted from his continued efforts to communicate with the complainant after his arrest. Defence counsel and Crown counsel made a joint submission to the trial judge for a global sentence of six months custody plus the equivalent of 3 months pre-trial custody (a total of nine months). The trial judge declined to accept the joint submission.

[7] The trial judge was cognizant of the law that a joint submission should only be rejected in rare cases, but she concluded that this was such a case. We agree. The nature and persistence of the appellant’s behaviour – continuing even after he had been incarcerated and ordered not to communicate with the complainant – was potentially dangerous, and his serious and related criminal record, all supported the trial judge’s view that it would be contrary to the public interest and would bring the administration of justice into disrepute to adopt the joint submission in the circumstances of this case. The sentence she imposed is well within the range for such offences.

[8] We would grant leave to appeal sentence, but for the foregoing reasons the appeal as to conviction and sentence are dismissed.

“John I. Laskin J.A.”

“R.A. Blair J.A.”

“S.E. Lang J.A.”