Court File and Parties

Citation: R. v. Holmes, 2008 ONCA 604

Date: 2008-09-05

Docket: C47167

Court of Appeal for Ontario

Before: Rosenberg, Feldman and Juriansz JJ.A.

Between:

Her Majesty the Queen Respondent

and

Jeffrey Scott Holmes Appellant

Counsel: Robert Sheppard for the appellant Karen Papadopoulos for the respondent

Heard and released orally: September 2, 2008

On appeal from conviction by Justice John Desotti of the Superior Court of Justice dated December 7, 2006.

Endorsement

[1] The only ground of appeal from conviction is that the trial judge erred in finding that the appellant had the requisite mens rea for criminal harassment. The appellant argues that since he attempted to disguise himself and hide his presence from the complainant, he did not know that the complainant was harassed and he was not reckless or wilfully blind as to whether the complainant was harassed. He points out that the complainant did not know the appellant had been watching her until told by the police later that day.

[2] Whether the appellant had the requisite mens rea was in this case primarily a question of fact. Since there was no evidence from the appellant, whether or not he had the requisite mens rea depended on the inferences to be drawn from the proven facts. The trial judge rejected the submission that the use of a hat and sunglasses was a disguise and he was entitled to do so on this record. Moreover, the appellant drove slowly past the gym twice in his distinctive car and then ran on to the street as the complainant’s vehicle was leaving. Given those facts it was open to the trial judge to find, as he did, that the appellant was reckless as to whether the complainant was harassed.

[3] Accordingly, the appeal is dismissed.

Signed: “M. Rosenberg J.A.

“K. Feldman J.A.”

“R. G. Juriansz J.A.”