Court Information

Ontario Court of Justice

Date: 2019-12-04

Location: Newmarket

Parties

Between:

Her Majesty the Queen

— and —

Kyriacou Evagora Adamou

Judgment

Evidence and Submissions Heard: 4 December, 2019

Delivered: 4 December, 2019

Counsel:

• Ms. Michelle Rumble — counsel for the Crown
• Mr. Warren Skinner — 486 counsel
• Ms. Kyriacou Adamou — on her own behalf

Decision

KENKEL J.:

Introduction

[1] Ms. Adamou is charged with breaching a probation order by contacting her daughter via email four times from May 22nd to July 14, 2019.

[2] The Crown must prove beyond a reasonable doubt that Ms. Adamou was bound by a probation order with the term as alleged on the dates in question. The Crown must prove to the same standard that Ms. Adamou was the author of the emails sent to her daughter. If the Crown proves those elements of the offence, a defence of reasonable excuse is available under section 733.1.

[3] Ms. Adamou's daughter testified that she received the emails marked as Exhibits 2 to 5 from her mother's email address. Exhibit 6 is a further email from her mother she received on July 19th. She wasn't aware of the May 22nd email until August when she checked an old email account. She identified her mother's email address. The contents of the emails contain numerous details about her and her family that confirm the email was sent by her mother.

[4] Ms. Zasheva was Ms. Adamou's probation officer during the period in question. When she took over the file, she reviewed the terms of the probation orders and emphasized with Ms. Adamou that she was not permitted to contact her daughter directly or indirectly. She gave examples of prohibited contact including sending messages through third parties. The topic of contact with her daughter was discussed at every meeting they had.

[5] Ms. Adamou testified and acknowledged that she was bound by the probation term prohibiting contact with her daughter on the dates alleged. She said she sent the emails in question to her daughter's old email accounts thinking that they were inactive. She received a response back from the Hotmail account that suggested to her that one email sent to that account wasn't received. She had a copy of another, similar response from her daughter's Gmail address, but agreed in cross-examination that that particular message was returned because she had mistyped her daughter's name in the email address. She sent her daughter emails not expecting they would be received, but only because she likes to see her daughter's name.

Analysis

[6] Even without Ms. Adamou's admission, there is direct and circumstantial evidence identifying her as the person who sent the emails. Sending emails to her daughter was an act that was prohibited by the terms of her probation. The direct and circumstantial evidence shows all emails marked as exhibits at trial were received by Ms. Adamou's daughter.

[7] Ms. Adamou's defence is based on a lack of intent. She testified that she wrote her daughter's email addresses just to see her name. She sent them, but didn't expect that they would be received as she thought the accounts were not in use.

[8] I've considered Ms. Adamou's evidence in the context of all of the evidence and I find I cannot accept her explanation that she typed and sent emails to her daughter just to look at the name. If she wanted to look at her daughter's name there would be no reason to actually send the email. The contents of the emails contain a direct message to her daughter in one and in others family information including her will that she admits she wanted to share with her daughter. Her explanation doesn't make any sense and I am unable to accept it. It does not leave a reasonable doubt either alone or in combination with other evidence. It is not a "reasonable excuse" within the meaning of s 733.1.

[9] The contents of the messages and the fact of repeated messages to addresses which were delivered show that the emails were intended to be received by Ms. Adamou's daughter. That's the only inference that is consistent with the credible direct evidence, the emails and the circumstantial evidence. Even if Ms. Adamou had some reason to believe one account was inactive after an email was sent, she sent emails to both of her daughter's accounts knowing that act would likely result in a breach of her probation order and she was reckless as to that result.

Conclusion

[10] I can find no credible evidence that reasonably could leave a doubt. The Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.

Delivered: December 4, 2019

Justice Joseph F. Kenkel