Court of Appeal for Ontario

Citation: R. v. Radcliffe, 2009 ONCA 233 Date: 2009-03-17 Docket: C49044

Between: Her Majesty the Queen (Respondent) and Frederick M. Radcliffe (Appellant)

Before: Moldaver, MacFarland and Epstein JJ.A.

Counsel: Ronald G. Guertin, for the appellant Leanne Salel, for the respondent

Heard and released orally: March 5, 2009

On appeal from the conviction entered by Justice D. Wake of the Ontario Court of Justice dated March 20, 2008.

Endorsement

[1] This is an appeal from conviction entered by Wake J. for the offence of criminal harassment.

[2] The offence occurred in the context of a series of events and communications surrounding the appellant’s dealings with the complainant who was then working at a Rogers outlet in a shopping centre, in the context of her assisting him with problems with his cell phone.

[3] The grounds of appeal as set out in the appellant’s factum can be summarized as follows:

(1) the trial judge erred in finding that the Crown had proven the elements of the offence of criminal harass-ment beyond a reasonable doubt; and

(2) the trial judge erred in his assessment of the evidence of the complainant.

[4] The trial judge correctly identified the elements of the offence of criminal harassment and, based on the evidence, concluded that the Crown had proven each of those elements beyond a reasonable doubt. The trial judge found that the appellant repeatedly communicated with the complainant by calling her, texting her and attending at her place of work. His doing so, according to the evidence of the complainant which the trial judge accepted, reasonably caused her to feel harassed. The appellant knew that his overtures were bothering the complainant as he apologized for “freaking her out”.

[5] Following his attempts to apologize, the harassment continued by his returning to her place of work for no legitimate reason. Finally, the trial judge accepted the evidence of the complainant that she reasonably feared for her safety as a result of the appellant’s conduct.

[6] In our view, the evidence was capable of supporting the trial judge’s factual findings. In fact, much of the evidence that formed the basis of these findings was unchallenged. We see no error in the trial judge’s application of the facts to the elements of the offence and his conclusion that the Crown had proven those elements beyond a reasonable doubt.

[7] The appellant also challenges the trial judge’s conclusions that the elements of the offence had been made out on the basis that he misapprehended the evidence, mainly in his assessment of the complainant’s credibility. He submits that the trial judge should not have accepted the complainant’s evidence in the face of its various contradictions and embellishments.

[8] The trial judge expressly addressed many of the evidentiary concerns relied upon by the appellant. It is clear that he took into account the problems associated with the complainant’s evidence such as her having embellished the history of events when she described it to her co-worker. The trial judge is not required to specifically mention each one in his reasons. In the end, he accepted the core of the complainant’s evidence regarding the allegations against the appellant.

[9] Moreover, he found support for an important aspect of her evidence, her fearing for her safety, in the evidence of the complainant’s co-worker. The trial judge’s credibility assessment attracts considerable deference from this court and we see no basis for disturbing it.

[10] The appellant has failed to demonstrate that the trial judge erred in any respect in finding that he was guilty of the offence of criminal harassment. Accordingly, the appeal is dismissed.

“M.J. Moldaver J.A.”

“J. MacFarland J.A.”

“G. Epstein J.A.”