Court of Appeal for Ontario

Date: 2018-11-13 Docket: C61707 Judges: Feldman, Roberts and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Ethan MacCullouch Appellant

Counsel

Ethan MacCullouch, acting in person Danielle Robitaille, as duty counsel Megan Petrie, for the respondent

Heard and released orally: November 6, 2018

On appeal from: the summary conviction disposition entered on January 15, 2016 by Justice Dale Parayeski of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant seeks leave to appeal from the dismissal of his appeal from his summary conviction for criminal harassment.

[2] The test for leave to appeal is onerous. Leave should be granted sparingly. Generally, the appellant must show that there is a clear error of law in the summary conviction appeal judge's decision or that the appeal raises an issue of public importance beyond the particular case: see R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) (C.A.), at paras. 30-32 and 37.

[3] In our view, the appellant has not met this test.

[4] The appellant does not identify any error in the summary conviction appellate judge's decision but focuses primarily on errors he said were made by the trial judge. The appellant challenges the factual findings and findings of credibility made by the trial judge. He submits that (1) the trial judge should not have permitted the complainant to testify about her belief that he poisoned her cat; (2) the complainant's other evidence should not have been accepted because it was exaggerated; and (3) his actions did not amount to criminal harassment.

[5] We are not persuaded by these submissions.

[6] First, the trial judge did not rely on the complainant's evidence about her belief concerning the death of her cat, and expressly held that there was no proof that the appellant had killed the complainant's cat or anyone else's cat.

[7] With respect to the complainant's other evidence, it was open to the trial judge to accept some, all or none of her evidence. He was alert to the deficiencies in her evidence. The trial judge made no error in accepting the complainant's evidence in support of the elements of the offence which he found were made out beyond a reasonable doubt.

[8] Finally, we see no error in the trial judge's determination that the appellant's behaviour, as the trial judge found it to be, amounted to criminal harassment. Again, it was open to the trial judge to come to that conclusion based on the evidence that he accepted.

[9] Accordingly, the motion for leave to appeal is dismissed.

K. Feldman J.A. L.B. Roberts J.A. Fairburn J.A.