COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mosier, 2012 ONCA 529

DATE: 20120802

DOCKET: C52861

Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Mosier

Appellant

Counsel:

Robert Sheppard, for the appellant

Christine Tier, for the respondent

Heard and released orally: July 30, 2012

On appeal from the conviction entered on January 21, 2010 by Justice Helen A. Rady of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] At his trial on two counts of criminal harassment under s. 264(2)(d) of the Criminal Code, the appellant contended that the complainants could not reasonably have felt threatened as a result of the letter the appellant left in the driveway of their home.

[2] After conviction and prior to sentence, the appellant applied to re-open the defence case to permit the introduction of evidence that was tendered to show that the complainants’ fear for their safety was not founded on the appellant’s letter, rather was the result of information provided by others that the appellant was dangerous. The trial judge declined to re-open the case. This ruling is not challenged on appeal.

[3] In this court, the appellant argues that the trial judge erred in finding that the mens rea of the offences had been proven beyond a reasonable doubt because she failed to consider the impact of the appellant’s mental state, one of despondency, distress and suicidal thoughts, on the proof of that issue.

[4] This issue was not raised at trial, indeed was negated by the appellant’s own testimony.

[5] The trial judge properly instructed herself on the essential elements of the offence and found each, including mens rea, established beyond a reasonable doubt. The trial judge found, as she was entitled to do, that the conduct underlying the writing of the note began before the day the note was left in the complainants’ driveway. Thus the appellant’s mental state on March 30, 2008 was of minimal relevance on the mens rea issue in this case. The failure of the trial judge expressly to mention the appellant’s mental state in connection with the mens rea of the offences charged is a reflection of the way the case was put to her at trial and does not constitute error. See R. v. Walle, 2012 SCC 41, at para. 52.

[6] The appeal is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”