CITATION: R. v. Revington, 2007 ONCA 197

DATE: 20070322

DOCKET: C45484

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – HOBY REVINGTON (Appellant)

BEFORE:

SHARPE, SIMMONS and CRONK JJ.A.

COUNSEL:

Mitchell Eisen

for the appellant

Christine Tier

for the respondent

HEARD & RELEASED ORALLY:

March 20, 2007

On appeal from the conviction entered by Justice Joseph B. Wilson of the Ontario Court of Justice dated April 19, 2006.

E N D O R S E M E N T

[1] The appellant was charged with five counts of criminal harassment and two counts of breach of undertaking in respect of his conduct in relation to his daughter and his former wife during the period August 1, 1993 to October 31, 2004. He was acquitted of all charges save one count of criminal harassment concerning his daughter for the period August 1, 1993 to September 30, 2003. The trial Crown conceded that there was no evidence capable of supporting a criminal harassment conviction in respect of this count except for evidence pertaining to the years 2001 to 2003. On appeal, Crown counsel acknowledges that the available evidence related only to the period April to September 2003.

[2] An essential ingredient for a conviction on a charge of criminal harassment under s. 264(2)(b) of the Criminal Code is a finding that the accused engaged in conduct that, in all the circumstances, caused the victim reasonably to fear for his or her safety, or the safety of another person known to them. In our opinion, the evidentiary record does not support the conclusion that this prerequisite was satisfied in this case for the count of criminal harassment in respect of which a conviction was entered.

[3] In particular, notwithstanding the unfortunate and troublesome behaviour of the appellant during this period, apart from her testimony about a passing reference in one e-mail from the complainant to the appellant, the complainant gave no evidence of any fear for her safety during this period. Accordingly, even in the light of the evidence of the history of the relationship among the parties, the conviction cannot stand.

[4] The appeal is therefore allowed and an acquittal is entered.

“Robert Sharpe J.A.”

“Janet Simmons J.A.”

“E.A. Cronk J.A.”