[2004] OJ No 2440 (ONCA)

In [2004] OJ No 2440 (ONCA), Mr. N was found guilty of harassing phone calls and sentenced to 74 days’ incarceration and 3 years’ probation. His appeal against the conviction was dismissed. The harassing conduct had begun six months prior to the laying of the information and continued afterwards. The court held that as long as the Crown could prove the conduct was ongoing during the 6 months period, it did not need to frame the information to include proceeding conduct.

Mr. N had made repeated phone calls to police officers to the Police Complaints Commission and left abusive and vulgar messages on three employees’ answering machines. The court held that the primary purpose of the calls was to harass and there was no lawful purpose to calls. The court stated that:

if the primary purpose of a telephone call was to harass, then the call cannot be said to have been for a lawful purpose. A creditor, for example, is not entitled to phone a debtor at all hours and make rude, vulgar, or obscene comments because the creditor is owed money. Most individuals who harass others in our society, likely feel a sense of betrayal or a grievance, either real or imagined. A motivation, whether legitimate or not, is not an excuse or a defence for criminal behaviour. The defence, in their able submissions, quite correctly points out that the Court must not allow vulgar, uncivilized or unacceptable behaviour or conduct to be vested with criminal consequences unless it is an offence. I agree completely with that submission. If there was any doubt that the purpose of the calls in question was vested with a lawful purpose; that is, if the Crown were unable to prove that the accused’s purpose was to harass, then the accused would be entitled to an acquittal.[1]

His conviction was not overturned on appeal.

Also see: [2004] SCCA No 331 (SCC) (Appeal), [1999] 41 WCB (2d) 190 (ONCJ) (Appeal against conviction), [1996] 31 WCB (2d) 445 (ONCJ) (Trial), [1995] OJ No 4250 (ONCJ) (Evidence)

[1] [2004] OJ No 2440 (ONCA) at para 11.


Criminal Offence(s): Harassing Communications