COURT OF APPEAL FOR ONTARIO

DATE: 20060707

DOCKET: C41993

RE: HER MAJESTY THE QUEEN (Respondent) – and – PETER GREEN (Applicant (Appellant))

BEFORE: GOUDGE, BLAIR JJ.A. and THEN J. (ad hoc)

COUNSEL:

Christopher Hicks for the appellant

Carol Ann Bauman for the respondent

HEARD & ENDORSED: June 29, 2006

On appeal from conviction by Justice D.G. Hacket of the Ontario Court of Justice dated March 12, 2004 and sentence imposed dated March 19, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge expressly found that the appellant committed criminal harassment of the complainant on September 23 contrary to s. 264(1)(b). However, there was evidence of only one communication on that date. More than one is required for conviction. See R. v. Kosikar (1999), 138 C.C.C. (3d) 217. The trial judge therefore erred in law and the conviction on this count must be set aside.

[2] However, there was evidence upon which the trial judge could have convicted the appellant of criminal harassment contrary to s. 264(1)(b) albeit that would have required her to amend the date on the indictment to conform to the evidence. We would therefore order a new trial on this count.

[3] As to sentence, we see no basis for the trial judge to question the ability of the Family Court to properly supervise the relationship of the appellant with his children. Apart from that we see no error in the term of probation challenged by the appellant. Leave to appeal sentence allowed and this term of probation varied to provide that the appellant is not entitled to have access to his children except as may be permitted by the Family Court.