Court File and Parties

Court File No.: Central East - Newmarket 13-05300 Date: 2014-02-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Rinaldo Giancola

Before: Justice P.N. Bourque

Counsel:

• B. McCallion, for the Crown
• E. Starer, for Rinaldo Giancola

Judgment

Released on February 6, 2014

BOURQUE J.:

Overview

[1] I am dealing with the matter of Rinaldo Giancola. He is charged that on or about the 7th of July 2013, in the City of Vaughan in the Regional Municipality of York, did, without lawful authority, and knowing that another person; namely, Adelina Medeiros, was harassed or recklessly as to whether that person was harassed, engage in repeatedly communicating with, either directly or indirectly, that person, and caused the said Adelina Medeiros to reasonably fear for personal safety, contrary to section 264(3) of the Criminal Code.

[2] The evidence in this matter disclosed that the complainant and the defendant began a relationship in approximately 2006 and it broke up in approximately 2009. She alleges that in July of 2013, the defendant made harassing phone calls and contact with her, and the defendant is subsequently charged with criminal harassment.

[3] At the close of the Crown's case, the defence has brought an application for a directed verdict. I will review the evidence at its highest for the Crown's case in coming to my decision.

Facts

[4] Ms. Medeiros works at a bank, she has three adult children. She had lost her husband and had been going to a hospice support group at her church and there she met the defendant. They interacted and in 2006 they started an intimate relationship, which lasted sometime into 2009. I accept that it was the witness who broke off the relationship. She stated that upon the break-up, the defendant did not seem to want to accept it and he contacted her by phone, and indeed, attended at her home uninvited.

[5] She stated that in the past he had contacted her friends and indicated to them certain personal things. He made many statements of love and regret to her at that time. And as a result of a contact he made with one of her friends, she went with her friend to the police in 2009 and certain legal proceedings were started then. After the defendant was contacted by the police, at that time, his contact stopped. Apparently, from that period of time, 2009 through to 2011, there was some irregular contact between the complainant and the defendant.

[6] With regard to this matter, it is the events of July 7-10, 2013 that I am dealing with, not the events of 2009. However, I do take them into account in coming to a conclusion in this matter.

[7] She stated, on July 7th, 2013, she was at church with her boyfriend, and at that point, the defendant was there and he spoke to her. It was clear to her that he obviously still wanted, for some reason, to continue some relationship with her, and he seemed upset that she was with another man. She told him in no uncertain terms to go away and leave her alone, and she left with her boyfriend. Voicemails were received by the complainant later that day and the following two or three days.

[8] Played in court, and marked as Exhibit Number 1, were a series of five voicemail messages left by the defendant on the phone of the complainant on July 7th, and in the following several days. The phone messages consist of the defendant, over a period of up to three to four minutes in each call, bemoaning the fact that the complainant is with another man, speaking of his continuing love for her and speaking of his inability to get over his love for her. There is nothing specifically or explicitly threatening about them; he does not threaten anyone with bodily harm, he does not threaten harm to himself, although he does refer to the fact that his unrequited love is continuing and it is having an effect on his health.

[9] She stated that on the Tuesday or the Wednesday, that she was at the boyfriend's home and he called the boyfriend's, obviously to speak to the boyfriend. She got on the phone and she became extremely upset, told him not to call, and that is what made her go to the police, and these charges are the result.

[10] She was questioned extensively by the Crown about the effect of these calls and she was clearly and obviously upset and very unhappy. She did not want him to be calling her friends and telling them their private things. It was clear that she, at that time, was distraught. However, in her evidence in-chief, she never stated that she feared for her safety or for the safety of anyone known to her.

[11] In cross-examination, it was put to her that she did not fear for her safety. I noted that first she equivocated by saying, "A little bit", but later when the question was more direct, she admitted that she did not fear for her safety, as a result of the messages in July of 2013, although, she did refer back to one of the messages in 2009, which caused her concern. She was further cross-examined about various events and things that happened between 2009 and this event in 2013. And it is clear that there was some contact, and some of the contact was of a friendly nature. There may even have been a brief incident(s) of some intimacy. I think it is clear that she was doing her best to extricate herself from him, although her attempts to convince him, that that is what she wanted to do, did not seem to be accepted very well.

Legal Analysis

[12] I must, therefore, look very seriously at the section. In 264(1)(2) states as follows:

No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engaged in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them. The conduct mentioned in subsection (1) consists of: repeatedly communicating with, either directly or indirectly, the other person or anyone known to them.

[13] The question in my mind is whether the Crown has led any evidence upon which a reasonably instructed jury could come to the conclusion that the Crown has proven beyond a reasonable doubt that the complainant feared for her personal safety.

[14] There is no doubt in my mind that the complainant wanted nothing further to do with this defendant. There is no doubt that she told him on numerous occasions not to contact her and her friends. There is no doubt in my mind that she was feeling tormented, troubled, plagued, bedevilled and even badgered by these phone calls. However, as stated in R. v. Revington:

An essential ingredient for a conviction on a charge of criminal harassment 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. In this case, in particular, notwithstanding the unfortunate troublesome behaviour of the appellant during this period, apart from her testimony about a passing reference to one Email from the complainant to the appellant, the complainant gave no evidence of any fear for her safety during this period. Accordingly, the conviction cannot stand.

[15] I believe, to a certain extent, I unfortunately find myself in the same position.

[16] She may have had the worry that he would call, and perhaps even appear, and I think it was a real worry, but whether this translated into a fear for her safety, there is no evidence upon which anyone could make that decision. That she was upset is clear, that she wanted these things to stop is clear.

[17] However, how can it be said that upon this evidence a jury could come to the conclusion that she had a subjectively stated fear. The evidence is not there, and again, as I say this with some reluctance, because I had great sympathy for the position that this woman found herself in, I must then grant the suit for the directed verdict, and I do direct a verdict of acquittal[1].

Signed: "Justice P.N. Bourque"

Released: February 6, 2014

Footnote

[1] If the charge had been framed under section 372(3) of the Code, I would not need to assess any fear of the complainant and the trial would continue on its facts until concluded. Unfortunately, there is no jurisprudence I am aware of that makes 372(3) an included offence in section 264(1), (2) or (3).