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A Grand Bank judge has rejected an accused man's argument that he accidentally broke his order to have no contact with his ex, when he pocket-texted her a photo.
Provincial court Judge Harold Porter convicted Robert Bruce Noseworthy on Tuesday, saying the chances of that happening are remote, to the point of being "fanciful."
Noseworthy had been bound by a no-contact order and a number of other court-ordered conditions on March 15, when his ex-partner received two text messages from him while she was travelling in a vehicle with a male acquaintance.
"Could u get (the male) to call? I'll be getting the children today," the first message said, apologizing for being unable to take the children the previous weekend and indicating he had arranged to be able to take them every weekend henceforth, if it was OK. He also gave the woman a phone number for his social worker, saying she could call the worker if she had any concerns. At the time, the court heard, Noseworthy was on bail for a charge of assaulting the woman, and there was an arrangement in place by which he was to contact her male companion to organize access to the children.
The second text was a picture of a drawing by one of the children, saying, "I love Dad and Mom. I wish they'd live together."
The woman testified she was upset by the messages, and had asked her companion to call the police.
Testifying in court, Noseworthy said he had sent the text asking the man to call him, but the second text had been sent accidentally.
"The accused said that he had tried to explain that it was an accident when he got arrested," the judge noted, as he convicted Noseworthy. "He said, 'I put the phone in my pocket and somehow the picture got sent through.'
"There is no evidence before me as to how, or if, one can 'accidentally pocket-dial' and send someone a text with a photograph attached. Nor is there any evidence as to the probability that such an accidental pocket-dial transmission could end up being sent to one's ex-wife while there is a bail condition prohibiting any contact or communication between the parties."
However, none of that mattered anyway, the judge continued, since the first text was clearly addressed to the woman, not her companion, and had not been sent by accident.
In addition to breaching the no-contact order, Porter convicted Noseworthy of breaking an undertaking, a probation order and a peace bond, all requiring him to be of good behaviour.
Noseworthy will be sentenced in the new year, following the completion of a pre-sentence report.