Ontario Court of Justice

Date: 2022 07 13 Court File No.: 22-70003651 (College Park, Toronto)

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JENNIFER McKINLEY

Judgment

Before: Justice B. Jones

Heard on: July 6-8, 2022 Reasons for Judgment released on: July 13, 2022

Counsel: D. Hogan, counsel for the Crown D. Goodman, 486.3(2) counsel C. Currie, amicus curiae

Jones J.:

Introduction

1Jennifer McKinley is charged with criminal harassment (Criminal Code section 264(2)(b)), failing to comply with a release order (Criminal Code section 145(5)(a)) and assaulting a peace officer (Criminal Code section 270(1)(a)).

2The events surrounding this trial arose from a brief intimate partner relationship she had with the complainant, Mr. Daniel Sepiashvili in 2019. Following the end of that relationship, Mr. Sepiashvili attempted to remain on good terms with her. Ms. McKinley did not wish to see their relationship end, however. The Crown alleges over the course of the following three years Ms. McKinley criminally harassed Mr. Sepiashvili by refusing to let go of whatever fleeting romance transpired between them. She is accused of sending him thousands of electronic communications, and of calling him incessantly. While there were some gaps in this behaviour, it was persistent and essentially unrelenting over the time period of approximately June 2019 until her arrest on April 1, 2022.

3On April 1, 2022, she was ordered to comply with a release order issued by the Ontario Court of Justice. One of the terms of that release order was that she was prohibited from communicating with Mr. Sepiashvili. On April 2, 2022, she communicated with him again by text messages. She was re-arrested on that date. During the course of her arrest, she allegedly assaulted PC Langdon by kicking him.

4Ms. McKinley exercised her constitutional right to represent herself: see R. v. Swain, [1991] 1 S.C.R. 933, at p. 972. Mr. Goodman was appointed as counsel pursuant to Criminal Code section 486.3(2) for the purpose of conducting the cross-examination of Mr. Sepiashvili. Ms. Currie was appointed to act as amicus curiae during the course of this trial.

Ensuring a Fair Trial for a Self-Represented Accused

5Trial judges have a duty to ensure a self-represented accused person has a fair trial. The criminal justice system is complex, and a trial can be procedurally difficult to properly navigate for one who is not legally trained. A trial judge should provide guidance and assistance to the accused as required: see R. v. P.D.C., 2021 ONCA 134 at para. 51. The duty is a heavy one, given the importance of respecting the constitutionally protected rights of the accused.

6The Ontario Court of Appeal held in R. v. Breton, 2018 ONCA 753, 366 C.C.C. (3d) 281 at paras. 13-14:

It is well settled that where an accused is self-represented at trial, the presiding judge has a duty to ensure that the accused has a fair trial. To fulfill that duty, the trial judge must provide guidance to the accused to the extent that the circumstances of the case and those of the particular accused may require it. Within reason and without becoming counsel for the accused, trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him, as the trial unfolds, in such a way that the defence is brought out with its full force and effect.

7A trial judge’s obligations to a self-represented litigant must co-exist with his obligations to ensure an efficient and fair trial: R. v. Ivall, 2018 ONCA 1026, at para. 166. It is up to the trial judge to assess how to assist the accused to ensure that the trial is fair.

8Ms. McKinley was reminded of her right to counsel at the start of the trial and maintained she wanted to represent herself. I reviewed her rights and the trial process with her, as well as the specific charges she was facing and what the Crown was required to prove with respect to each count. I explained the criminal standard of proof and the presumption of innocence. She indicated she understood. I confirmed she had reviewed the disclosure materials and she was prepared to proceed.

9Ms. McKinley is an intelligent, articulate woman. It was clear to me she had given each decision she made during this trial considerable thought and knew how she wished to proceed in her own defence. She conferred with Mr. Goodman and/or Ms. Currie at various points during the trial when she wished to do so.

10After the arraignment, Ms. McKinley entered pleas of not guilty to the criminal harassment and assault peace officer counts. She entered a plea of guilty to the fail to comply with a release order count.

The Role of Amicus and 486.3(2) Counsel

11A trial judge cannot give strategic advice to a self-represented accused person: see P.D.C. at para. 54. While Ms. McKinley was able to consult with Ms. Currie during the course of the trial, there is an important distinction between the duties of a lawyer acting as amicus and that of defence counsel. The Supreme Court of Canada held in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, that “a lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court”: see paras. 49-56.

12Ms. Currie was available to assist the court with any issues that arose during these proceedings. She understood her role and acted admirably. Ms. McKinley was informed of the limits of Ms. Currie’s role and her ability to seek out a defence lawyer, including by applying for Legal Aid or speaking with duty counsel. She chose to represent herself regardless.

13A dispute did arise with respect to Mr. Goodman’s appointment [1]. Criminal Code section 486.3(2) states:

Accused not to cross-examine complainant — certain offences

(2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

14There is no discretion under this subsection except where the judge is of the opinion that the proper administration of justice requires that the accused personally conduct the cross-examination: see R. v. Bakhash, 2017 ONSC 3835 at para. 39. This section was implemented to balance the competing rights of those involved in a criminal trial. In particular, it attempts to balance the right of a witness not to be further victimized, and the accused’s fundamental right to conduct her own defence as she sees fit.

15The Alberta Court of Appeal described the purpose of section 486.3(1) of the Code, a companion provision to the subsection at issue in this case, as to “protect vulnerable witnesses, under the age of 18, from being intimidated by an accused during cross-examination”: see R. v. C.G.M., 2015 ABCA 375 at para. 16. Mr. Sepiashvili is not a child, of course, and the purpose of these provisions will undoubtedly take on even greater significance in cases involving children and other particularly vulnerable witnesses. But the spirit of protecting all vulnerable witnesses animates each of these provisions. Mr. Sepiashvili’s right to be free from further harassment must be a factor I consider, and afford considerable weight, when determining the appropriate procedure to follow in this trial. Parliament specifically included the offence of criminal harassment in section 486.3(2), recognizing the need to offer adequate protections to complainants who have already been subject to emotional and psychological harm by the previous conduct of the accused.

16Ms. McKinley indicated to me at several points during the trial that she wished to cross-examine Mr. Sepiashvili personally. She explained that she felt only she could effectively ask him questions in furtherance of her defence. She did not provide specific details in support of this position. I informed her that Mr. Goodman was an experienced defence lawyer who had prepared his own line of questioning to assist her in cross-examination and would speak with her in private to determine how to incorporate any defence strategy of her own. They were granted time to speak together. However, when they returned, she again insisted on being able to examine Mr. Sepiashvili herself and indicated she did not want Mr. Goodman conducting any cross-examination if I would not grant her request.

17Ms. Currie, as amicus, suggested that Ms. McKinley write out the questions she wanted Mr. Goodman to ask. She declined that option, again seeking permission to conduct the cross-examination personally.

18I denied this request. Parliament specifically included the crime of criminal harassment in section 486.3(2) as a justification for issuing an order to appoint counsel for the purpose of cross-examining a complainant. The reasons should be obvious. Where a person has come to court and testified that she or he has been the subject of repeated behaviour by the accused that has caused them great emotional trauma, to permit the accused to cross-examine that person would be to potentially perpetuate that very trauma. While Ms. McKinley is presumed innocent and has the right to defend herself and to conduct her defence as she sees fit, Parliament may place reasonable limits on that right.

19Ms. McKinley evidently did not wish to cooperate with Mr. Goodman and thus did not provide him with instructions or information that might have played a role in his potential cross-examination. She made the final decision to not have any cross-examination conducted on her behalf whatsoever, despite my caution to her that such a strategic decision would almost certainly be to her detriment. That was her choice.

20The trial process does not only consider the fair trial interests of the accused. It also includes considerations of the rights of witnesses including their personal dignity and privacy interests: see R. v. J.J., 2022 SCC 28 at para. 184. The right to cross-examination is not unlimited and must be balanced by countervailing factors such as the potential prejudice to a witness and the trial process itself. An accused person cannot, in these circumstances, simply declare that a certain cross-examination strategy will be the most effective means to defend the case and then expect to be granted permission to adopt it: see J.J. at para. 183.

21While an accused person has the right to a fair trial, they do not have the right to a perfect trial or an endless one: see R. v. White, 2011 SCC 13 at para. 194; R. v. Samaniego, 2022 SCC 9 at para. 56. A fair trial does not guarantee “the most advantageous trial possible from the accused’s perspective” and nor does it guarantee “perfect justice”: see R. v. Find, 2001 SCC 32 at para. 28. Trial judges have a duty to manage the conduct of a trial, including placing limits on cross-examination that may simply be irrelevant, argumentative, or intended to harass a witness: see Samaniego at para. 22.

22Had I granted Ms. McKinley’s request, it would have potentially needlessly protracted the proceedings and allowed the very trial process itself to continue the harassment Mr. Sepiashvili testified he had been experiencing for the better part of three years. That would be contrary to the proper administration of justice and run contrary to Parliament’s stated intent in section 486.3(2).

23Based on the submissions of Ms. McKinley and the nature of the evidence presented in this case including the testimony of Mr. Sepiashvili, I was not satisfied that the proper administration of justice required that Ms. McKinley be permitted to personally cross-examine Mr. Sepiashvili.

Criminal Harassment

24Section 264 of the Criminal Code provides:

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage 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.

(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

25The elements of the offence contained in section 264(1) consist of the following.

1. the accused engaged in conduct described in section 264(2)(a), (b), (c) or (d)
2. The complainant was harassed.
3. The accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed.
4. The conduct caused the complainant to fear for her safety or the safety of anyone known to her; and
5. The complainant’s fear was reasonable, viewed in all the circumstances.

See: R. v. Sheppard, 2022 ABCA 89 at paras. 11-16; R. v. Kosikar at para. 19.

26“Harass” means to be “tormented, troubled, worried, plagued, bedeviled and badgered”: R. v. Sillipp, 1997 ABCA 346 at para. 16; Kosikar at para. 25. The British Columbia Court of Appeal has held that “it is common ground that, in order to prove harassment, the Crown must establish that the prohibited conduct tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered the complainant”: R. v. Scuby, 2004 BCCA 28 at para. 9. In R. v. Szostak, 2012 ONCA 503, Rosenberg J.A. writing for the Ontario Court of Appeal adopted the trial judge’s finding that “fear for [one's] safety” included “a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physical danger or harm”: see para. 31.

27A complainant’s fear for his safety is thus not limited to physical safety but can include his emotional, psychological and mental health as well: see R. v. Sidhu, 2021 ABCA 56 at para. 26; R. c. Rancourt, 2020 QCCA 933 at paras. 33-35. There is no requirement that the Crown must prove there be a risk of actual physical violence: see R. v. Petrenko at para. 14.

28When assessing the reasonableness of the complainant’s fear the court must further take into account “the history and circumstances of the relationship, and the state of mind of the victim”: Sidhu at para. 26. The accused’s entire conduct – both before and after any police involvement or criminal charges existed – may be considered: R. v. Kordrostami at para. 17; R. v. D(D) at para. 16.

Assault Peace Officer

29Ms. McKinley was charged with assault peace officer contrary to s. 270(1)(a) of the Criminal Code which provides as follows:

(1) Every one commits an offence who

(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer

30Section 265 of the Criminal Code defines assault and provides that a person commits an assault when “(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly”. An accidental or unintentional application of force, will not establish the required mens rea: see R. v. Hashi, 2021 ONSC 5617 at para. 69.

31An essential element of this offence is that the target of the assault was a peace officer engaged in the execution of his duty at the time the assault occurred: see R. v. Beseiso, 2018 ONSC 5042 at para. 39. The accused must also have known that the person assaulted was a police officer: Hashi, supra.

Crown Evidence

Testimony of Daniel Sepiashvili

32Mr. Sepiashvili is 37 years old. He lives in downtown Toronto. He met Ms. McKinley in 2019 when she interviewed for a position in his office. She was not chosen as the successful candidate.

33She contacted him a few days later to ask him to attend a party. He agreed. They communicated via email and text messages primarily. A document containing the history of the text message communications between them was entered as Exhibit 1. It begins on June 1, 2019 and ends on April 2, 2022.

34The parties also communicated via WhatsApp. A document containing the history of the electronic communications that transpired between them through this application was entered as Exhibit 2.

35The communications between them began as flirtatious, as they got to know one another. They met at a club one night and ended up back at his residence where they had a sexual encounter.

36On June 17, 2019, they met again in person. They went to a bar called Kasa Moto. Later in the evening they returned to his residence for another sexual encounter.

37They continued to speak and communicate with one another via electronic messaging. For a period of time everything appeared normal to Mr. Sepiashvili. Eventually, however, he wanted the communication between them to stop. He began receiving a large number of phone calls and text messages from Ms. McKinley. He was concerned matters were getting out of hand. He did not care for her conduct during part of the evening on June 17 and no longer wished to pursue a relationship with her.

38He received 15-20 calls some days. He would answer the first call and speak to her. He would then stop answering the calls. She would switch calling from a number he recognized to a different number in an attempt to have him answer. These included blocked phone numbers and he would stop answering those calls as well. Prior to his relationship with Ms. McKinley, he never received multiple blocked calls on his phone.

39Mr. Hogan took Mr. Sepiashvili through many of the text messages that comprised Exhibit 1. In the summer of 2019 Ms. McKinley persisted in her attempts to maintain contact with him. The messages were sometimes polite, other times aggressive or accusatory, and then apologetic. For example, on July 18, 2019, she texted that she was “baffled” by his behaviour and wondered if he felt it was a waste of time to text her for a month. On July 19, 2019, she wrote that she was sorry for her prior messages. Mr. Sepiashvili would typically respond with brief messages in an attempt to be civil, but make it clear he wanted the communications to cease.

40He testified he became nervous given the sheer volume of the communications he was receiving. This was occurring daily, and he felt harassed.

41On July 28, 2019, Ms. McKinley texted him a demand he call her and “actually follow through on that.” She also wrote that she would “obsess over that”. The calls continued. He refused to call her back, as he had simply had enough. The text messages now were causing him particular concern.

42On August 25, 2019, Mr. Sepiashvili decided to write to Ms. McKinley. He told her he started seeing someone and it was not right for him to be responding to her accordingly. He told her she was a good person but she needed to “stop with this.”

43On September 3, 2019, he received a WhatsApp message that indicated she was in his office area and wanted to explain her behaviour. Her decision to attend at his place of business caused him greater concern. He thus set up a meeting in person to try and reason with her. He felt he was forced into this meeting.

44They met outside the Eaton Centre around 12:33 p.m. He had a friend attend with him out of an abundance of caution. By this point he was frightened and worried matters might escalate. His friend simply remained in the area, and Ms. McKinley was unaware he was present. He spoke with Ms. McKinley and stated he did not want to communicate with her anymore. She indicated she understood. He felt the meeting went well and was momentarily relieved.

45That feeling, unfortunately, did not last. The calls and messages began again. He tried to avoid any contact with her but once in a while he would answer his phone not realizing it was her. He would immediately hang up. He blocked the phone numbers she called from and the WhatsApp accounts that contacted him but to no avail. She was relentless.

46Mr. Sepiashvili was clear that for periods of time the communications via WhatsApp and text messaging did stop. But they would always re-commence. The sheer volume of the evidence presented by the Crown in this case is too great to examine in detail in the rest of these reasons. I have focused my analysis on the most powerful and startling examples.

47On September 14, 2020, she sent him a message inquiring “why can’t you stop being such a dick.” The phone calls had become so great in number Mr. Sepiashvili said he could not even provide an estimate as to how many were occurring around this time in his life. Each one seemed to blur into the next. He blocked every contact via WhatsApp he could and every phone number he could. Nothing worked.

48On October 8, 2020, he received a message that she was outside his office again and she would not go anywhere until he agreed to meet her for a coffee. He had more anxiety and felt scared. He had never experienced something like this before. By now he said it felt traumatizing.

49There was a lengthy break in communications (at least via text messaging and WhatsApp) between them until March 2021. On March 18, 2021, she sent him a message that stated, “I hate every night I go to sleep without you.” This message stood out in his mind. On April 11, 2021, she wrote to him that “It honestly baffles me that you can’t even respond”, and that “common decency” required him to do so. Furthermore, she wrote that she hated that he spent time with people other than her. On April 28, 2021, she wrote that she didn’t like it when he blocked her and that “nothing has changed for me and it never will.”

50Mr. Sepiashvili emphasized that none of the messages were ever threatening per se. Rather, they simply made him very nervous and afraid that she would not leave him alone.

51Matters took a more concerning turn in May 2021. He was in Miami and had posted his location on social media. On May 14, 2021, Ms. McKinley sent him a message that she was in Miami just to see him. He did not invite her there or communicate with her about his location. He believed she had learned it from his Instagram posts. She sent another message with an image of a boarding pass from American Airlines in her name from Miami International Airport. This caused him great anxiety. There were also more electronic messages and phone calls from her.

52On June 9, 2021, she wrote to him that she wanted to go to Miami to see him. On June 10, 2021, she sent him messages stating that she just wanted to talk to him and that she “flew all the way here.” He testified he felt scared and could not get away from her. She had also sent him her location data via electronic messaging demonstrating she was, in fact, in Miami.

53She sent him a longer message wherein she stated, “Nothing is more important than living with the person you cannot live without. That person is you for me.” On June 27, 2021, she wrote, “Why don’t you just respond? I spent days editing that message…” On July 5, 2021, she wrote to him that “I want to be with you forever” and “I’ve spent the better part of two years… to prove to you how much I’m willing to give up for you or how far I’m willing to go for you”.

54Mr. Sepiashvili described running into her physically on occasion as well including at his residential building. He had to tell security not to allow her to see him and even that he did not want anyone to be near his door out of fear she might pose as someone else. On one occasion she was able to enter the building and left him a bag of items outside his door. She took a picture of herself at his door and sent it to him. This was particularly frightening to him.

55On August 6, 2021, she wrote to him that she rented a place in his building and was interviewing for a job in the same industry. He described feeling “mortified” at receiving this information.

56On August 8, 2021, he decided to try and reason with her one last time. He wrote to her, “Honestly you need to stop calling and texting me. This is harassment. Do not contact me again.” Even that message did not stop the constant attempts at communication. He later received explicitly sexual messages from her, including one that stated he was the “sexiest man I’d ever seen.” She also sent him photographs of herself including one nude selfie.

57Once again, he communicated to her how he wanted her to leave him alone. He wrote to her on August 17, 2021, in response to yet another message she sent him, “Do NOT contact me” and that she was harassing him and for her to “Please stop.” Yet the messages and calls from her continued.

58The content of the messages appeared to grow more dark and obsessive by the fall of 2021. On September 8, 2021, he received messages that stated, “Babe I don’t know why you want to pretend I won’t get what I want” and “You’re mine.” On October 28, 2021, a message was received that stated, “I’m really freaking out if you didn’t notice.” On October 30, he received a message that asked if he had sex with “Hiba or Eve”. These were women he was associated with at the time and considered his relationships with them to be very private. He did not know how Ms. McKinley would have known about them as he never shared anything about them with her. That same day he received another message which stated, “I don’t want you to fuck anyone that isn’t me.”

59An unusually angry message was sent on November 2. It read, “You know what, fuck it Danny. I realize you don’t give a fuck about me.” Another read, “In the long run I hope it’s worth it and I really do hope you stay happy.” A couple of hours later, another series of messages were received which included, “I’m going to fucking snap” and “You know I’m not going anywhere.”

60She wrote to him yet again on November 7 and he chose to respond. He wrote “I don’t want to talk to you. You keep harassing me with new numbers and thousands of messages. STOP MESSAGING ME. You’re not getting the hint. Leave me alone please.”

61The messages continued over the month of November 2021. On November 23 he again wrote to her, stating “I’ve told you 10000 times to STOP messaging me and emailing me. I’m not asking you again.”

62At the end of December 2021 a turning point occurred for Mr. Sepiashvili. He was out with two friends at a restaurant in Yorkville. One of his friends posted their location on Instagram and Mr. Sepiashvili reposted it. Shortly thereafter he was leaving the restaurant and heard a female voice call out his name. He knew instantly it was Ms. McKinley. She chased him down the block towards a building. She screamed at him and he told her to leave him alone. She threw her mittens and glasses at him. It was embarrassing and concerning. He was concerned that Ms. McKinley’s behaviour had escalated so much he feared she could have a knife or gun.

63He finally went to the police and reported what he had been experiencing. He informed the officers about the harassment and provided them with some identifying information he associated with Ms. McKinley from his phone. This included a phone number, email addresses and social media handles. He could not remember them specifically in court other than to say he stored them on his phone and that they were associated with the messages and calls he always received. The email addresses had the name Jenny in them in some capacity each time.

64He expected the police to contact her and tell her stop contacting him. Yet on December 22, 2021, only a few days after this prior incident, she messaged him again. He provided more documentation to the police that included a phone number and email address from the person contacting him. He was certain it was always Ms. McKinley. One of the email addresses was jennys.iphone@icould.com, for example. He also had a missed call with the call display information “McKinlay /C” in Keswick, Ontario.

65The culmination of Ms. McKinley’s behaviour occurred on April 1 and 2, 2022. On April 1 she arrived at his apartment building on foot. She appeared at the side of his vehicle as he was entering the parking garage and he recognized her. He told her to get away and called the police again. He also received messages from her that day at approximately 11:12 a.m. which included “I’m at your building.” He remembered she was wearing a dark winter coat.

66The Crown played a series of videos from […] Charles Street East that captured some of these interactions. The video surveillance footage shows a car entering the garage at this address and a woman dressed in a coat approaching the car and following it inside. Mr. Sepiashvili identified himself as the driver of the vehicle and the woman as Ms. McKinley. The woman is seen through several different pieces of footage wandering through the parking garage looking for someone while holding a phone.

67He called the police. They instructed him to engage with her so he responded to some of her text messages. He continued messaging her until the police arrived outside his building. At this point he was near his vehicle on Charles St. The Crown introduced body-worn camera footage from an officer involved in Ms. McKinley’s arrest that day. On the footage, she can be seen – clearly – as the woman in the dark coat. She was identified in this footage by Mr. Sepiashvili as well. He appears briefly in the video as he was present to witness the arrest.

68On April 2 he received more text communications from someone he believed to be Ms. McKinley. He felt traumatized. He called 911 and was connected to the police again. They asked him to re-engage with her so they could locate the person sending the messages and determine if it was, in fact, Ms. McKinley. The messages he received that day included “I love you” and “I’ll be going back too… I’m prepared LOL.” He was terrified of these messages, as he believed it was her referencing her willingness to return to jail. Another message was sent that stated, “Who cares about the law that way”.

69She also wrote “You got out of the car to make sure I was ok” and “You tricked me.” That, he believed, was a reference to him being present at the scene of her arrest the day prior. He then received a message that stated “I will go to jail forever for you.”

70He was able to provide the shared location data he received from her phone to the police officers. This last encounter left him afraid to even return to his home. Whatever love she felt for him, he was concerned might eventually turn to hate.

Testimony of Jonathan Shimoni

71Mr. Shimoni was 38 years old and a long-time friend of Mr. Sepiashvili. He was present at the dinner in Yorkville when Ms. McKinley tracked him down. He had never seen her before.

72He recalled the woman who arrived yelling out “Danny!” and chasing them down the street. Mr. Sepiashvili told her to leave him alone. He saw her throw her mittens and glasses at his friend. They finally left in a car. He had never seen Mr. Sepiashvili so scared or upset.

Testimony of PC Langford

73PC Langford has been an officer with the Toronto Police Service for 18 years. On April 2, 2022, he was one of the arresting officers for Ms. McKinley. He received information that she was bound by a court order to have no contact with Mr. Sepiashvili and she had started sending him text messages shortly after her release from custody earlier that day.

74PC Langford found Ms. McKinley near Bay and Adelaide at approximately 5:21 p.m. She ran from him and he began a foot pursuit. He was concerned she was running through traffic on the street dangerously, and at times appeared to be intentionally trying to get hit by a car.

75Eventually he was able to arrest her and handcuffed her. She tried to jerk away from him and at one point kicked backwards and struck him on his shin. He was not sure of her intention at the time.

76His body-worn camera was recording at the time and the footage was entered as an Exhibit. It did not capture the kick however.

Presumption of Innocence

77Ms. McKinley is presumed innocent. The Crown bears the onus of proving the essential elements of each offence she is charged with beyond a reasonable doubt: see R. v. Lifchus at para. 39.

Direct v. Circumstantial Evidence

78Much of the Crown’s case was reliant on circumstantial evidence. No one testified they saw Ms. McKinley author the electronic messages which formed the core of the evidence against her on the criminal harassment charge. No one testified that she confessed she authored them. Rather, the Crown asks me to conclude she must have been their author based on a review of all the evidence presented in the trial.

79Where proof of one or more essential elements of an offence with which an accused is charged depends wholly or substantially on circumstantial evidence, a trial judge should be cautious about inferring guilt. An inference of guilt drawn from circumstantial evidence must be the only reasonable inference that the evidence permits: R. v. Villaroman, 2016 SCC 33 at paras. 30, 32-34. The trier of fact should consider “other plausible theories" and “other reasonable possibilities" inconsistent with guilt: Villaroman, at paras. 35-37; R. v. Megill, 2021 ONCA 253 at para. 42.

80As I understand Ms. McKinley’s defence, I must therefore consider whether or not someone else, other than her, could reasonably be considered as the author of the electronic messages. If I conclude that someone else may have been the author, or even if I am left with a reasonable doubt that someone else may have been the author, I would not be able to infer her guilt on the count of criminal harassment.

Text Messages and Social Media Evidence

81The Crown introduced hundreds of pages of text messages and other electronic messages purportedly exchanged between Ms. McKinley and Mr. Sepiashvili. This form of evidence requires a court to approach it with enhanced caution.

82Courts must be “rigorous in their evaluation” of all forms of digital evidence, “both in terms of its reliability and its probative value”: see R. v. Aslami, 2021 ONCA 249 at para. 30. As a trial judge, I must be alive to the risk of placing too much weight on text messages or any form of social media evidence, including that generated from an “app” such as WhatsApp. This evidence must be subject to careful scrutiny about its authenticity, given the ease with which such evidence can be fabricated or manipulated: see Aslami at para. 11. A court can take judicial notice of the fact that it is not difficult for someone to manipulate a conversation consisting of electronic messages. This could be done by making it appear they were sent by someone who did not send them, by editing the content of the messages, or even by removing some messages to distort the true meaning of a conversation.

Analysis – Criminal Harassment

83Mr. Sepiashvili testified in a clear and direct manner. He answered questions honestly and candidly. He admitted what details he could, or could not, accurately remember. While there were some gaps in his memory due to the years that have passed since some of the events occurred, he had a vivid recollection of most of what he experienced. He provided every electronic message he had to the police and confirmed he did not alter the communication history or remove any messages from it.

84He explained how the constant messages, phone calls and other forms of communication had been very emotionally difficult for him to endure. He never gratuitously maligned the character of Ms. McKinley. Rather, he explained he was genuinely attracted to her at first but following their second in-person encounter on June 17, 2019, he decided he did not wish to pursue a relationship with her. He did not present as having any animus towards her at all. Rather, he just wanted her to stop communicating with him and for her to appreciate the anxiety she was causing in his life.

85His testimony was confirmed by the various forms of electronic evidence introduced by the Crown including the text and WhatsApp messages, but also the video surveillance footage obtained from his residential building and that taken on the officer’s body-worn camera on April 1, 2022. The testimony of Mr. Shimoni also confirmed his testimony respecting an in person encounter with Ms. McKinley in December 2021.

86He was not cross-examined at all. I find he was a credible and reliable witness, doing his best to provide accurate and honest testimony. I accept his evidence.

87He explained that he used text messaging and WhatsApp as the primary means of communicating with Ms. McKinley when they first met and went on their two dates in June 2019. The messages that form Exhibit 1 begin on June 1, 2019, where the parties refer to each other as “Danny” and “Jennifer”, “Jenn” and “Jenny.” These messages form one continuous stream of communication that does not end until April 2, 2022.

88The messages are flirtatious at first. Both parties seem interested in getting to know one another and have an interest in spending time together. On June 1 they agree to meet and Mr. Sepiashvili sends a car to pick her up. This was consistent with his in-court testimony where he agreed this was how his first date with Ms. McKinley began. The messages continue on June 2 with references to a previous sexual encounter between the two of them. This is also consistent with his testimony, as he described them returning to his place that evening for this purpose.

89The parties continue to text back and forth in a friendly and flirtatious manner and on June 16 make plans to meet again the next day at Kasa Moto, a bar located in Yorkville. On June 17 Mr. Sepiashvili received a message that “the more time I spend with you the more I love everything about you babe.” This confirms his testimony that he met with Ms. McKinley that evening and they had a second sexual encounter.

90Ms. McKinley continues to allude to their prior sexual encounters in many of the subsequent messages. For a brief time Mr. Sepiashvili seems to reciprocate the affectionate nature of these conversations. After that, Mr. Sepiashvili’s responses in the text message conversation become less frequent and eventually more curt. By July 10, 2019, this causes frustration to Ms. McKinley. She wrote to him “What’s your deal” and “I do not like it when you do not message me”. Periodically, Mr. Sepiashvili responded with texts that may have mislead Ms. McKinley about his intentions. There are occasional references to her as “babe” and emojis with hearts or kisses in them. On July 17, he wrote to her that it would be “perfect” to “wake up next to each other” and that he missed her.

91Whatever Mr. Sepiashvili’s true feelings about Ms. McKinley at this point, it is entirely understandable that Ms. McKinley may have been confused about their status and whether her affection for him was being reciprocated. Her communications demonstrated her increasing frustration. On July 18 she wrote that she was “baffled” by his behaviour and found it “annoying”. She later apologizes for this outburst. There are more texts the rest of the month that suggest she still wishes to pursue him romantically and wants to know if he feels the same way. She sends far more messages than he does, but periodically he continues to express some interest in her. For example, on July 25, he sent her a heart emoji in response to a message she sent stating that she is crazy about him and wants to apologize her for past behaviour.

92After that date, she continues to send him many messages, often daily, and his responses are few and far between. He testified that around this time he felt the sheer volume of communications and the nature of some of the text messages had become unwelcome and he began to feel harassed. He also testified that there were repeated phone calls as well.

93On August 25, 2019, Mr. Sepiashvili told her in a message that he started seeing someone and the communications need to stop. Importantly, he referenced the recipient by the name “Jenn”. Prior to this moment, I do not find that Ms. McKinley would have known that her messages were harassing Mr. Sepiashvili. Certainly, she might have some cause to wonder why she was being ignored. But the extent of his concern was not made clear to her. After August 25, 2019, however, she would have at least known that he had expressed his desire for the communications to stop.

94The electronic communications cease for a short period of time until on September 3, 2019 she informs him that she is at his office and wants to meet with him. Any doubt in her mind about his desire to be left alone would have been removed by when they did meet in person outside the Eaton Centre. Mr. Sepiashvili had become frightened by this point at the incessant communication. I find his concern was reasonable in the circumstances. He told Ms. McKinley during this meeting that he did not want to communicate with her anymore. She told him she understood.

95Yet the communications continued. While there are periods of time when the electronic messages stopped they always began again. I have no doubt that Ms. McKinley was the author of all these messages. They reference specific events that occurred between her and Mr. Sepiashvili. They use each other’s names periodically. Exhibit 1 represents an entire stream of text messages that began when they first started seeing each other and do not stop until her second arrest on April 2, 2022. He explained that he never received messages like this before meeting Ms. McKinley and he could not think of anyone else that would communicate with him in this manner.

96The emails and social media handles associated with the messages typically contained the name “Jenny” in some capacity or another. The content was consistent. They would oscillate between declarations of affection, frustration at being ignored, hostile language, and then apologies and an attempt to reconcile. They were clearly sent by someone infatuated with him. I heard no other evidence in the trial to suggest someone else could have been sending them or would even have had a motive to send them.

97The WhatsApp messages include accounts that were created with the name Jenn McKinley. On August 8, 2021, she sent pictures of herself to him that capture her face clearly. One image was a nude selfie that showed a tattoo she had on her lower abdomen that he remembered from his sexual encounters with her.

98The content of the messages is clearly intended to convey the sender’s love for Mr. Sepiashvili and her determination to win him back at any cost. It is a logical conclusion that the sender would be someone who had been in a romantic relationship with him, however brief, that did not end on her terms. Other messages demonstrate her anger and jealously over him possibly being with other women, such as those sent on October 30, 2021, asking if he had sexual relations with “Hiba” or “Eve”.

99His feelings of being scared, anxious and fearful for his safety were reasonable. These were not occasional messages that only sometimes crossed a line. They occurred over a nearly three year period and took on increasingly worrisome features as time went by. They occurred alongside phone calls that would not stop. Even when accounts were blocked, the messages continued from new accounts. She followed him to Miami in May 2021 and revealed her boarding pass and location data to make sure he knew she was truly there. He was being stalked.

100He repeatedly told her to leave him alone that she was causing him to feel harassed. On August 8, 2021, he told her specifically to stop and that it was “full on harassment.” On August 17, 2021 he told her again to not contact him and that she was harassing him. Not only did she refuse to stop, but she told him later that year that “you’re mine” and she didn’t want him to be with anyone other than her. She also told him she was not going anywhere. He again wrote to her on November 7 that he wanted her to stop messaging him and to be left alone. On November 13, 2021, he texted her to “STOP” messaging him. His fear at this point was entirely reasonable and she appeared to have become more obsessive and would not respect his wishes to be left alone. Even informing her he felt harassed she did not stop. I agree with the Crown that a former romantic partner continuing to send him messages, phone calls, and track him down in public years later is extremely concerning.

101The incident in December 2021 at the restaurant in Yorkville was a further sign that Ms. McKinley’s behaviour was becoming more alarming. Her willingness to yell at him in public and throw items at him was a sign of escalation. That incident, understandably, finally caused him to feel the need to reach out to the police.

102On April 1, 2022, she tracked him down at his home. He could not even feel safe where he lived. He saw her there, and video surveillance footage entered into evidence captured a woman in a dark winter coat following him into his building and then searching the parking garage. That same woman is then captured on the police body-worn camera from later that day which depicts Ms. McKinley being arrested at the same location. I find that Ms. McKinley followed him into his parking garage and then searched for him underground while texting him simultaneously. She was now willing to even violate the sanctity of his residential building.

103She was arrested by Toronto Police Service officers and is captured on video at the scene alongside Mr. Sepiashvili. She was charged and released from custody on a release order that prohibited her from contacting him. Yet even with that knowledge, and a court order telling her to cease contacting him, she was unwilling to stop. On April 2, she again sent messages from the same phone to him that form the end of Exhibit 1. Finally, she was arrested again by the police utilizing the very location data she shared with Mr. Sepiashvili.

104I have considered, carefully, the possibility that another person may have authored the electronic messages. I have concluded there is not a reasonable basis in this case to draw that conclusion. Nor am I left with a reasonable doubt about the authenticity of these messages. There is, as I have previously discussed, overwhelming evidence that the messages came from Ms. McKinley. The mere possibility that someone else may have authored the messages is not a sufficient basis upon which to find reasonable doubt, as that would amount to speculative reasoning: see R. v. I.W.S., 2017 ONCA 409 at paras. 16-17.

105There were hundreds upon hundreds of text messages and WhatsApp messages filed as part of Exhibits 1 and 2. Mr. Sepiashvili also testified to receiving at least 400 emails and online messages through Instagram. There were countless phone calls. Each one was clearly sent by the same person. To be clear, I find, as a fact, that the author of the messages contained in the exhibits filed in this trial was Ms. McKinley and she was the person who called him from various numbers (including blocked numbers) trying to get his attention. The sum of these communications paints a tragic picture of an infatuated young woman who simply would not leave the target of her affections alone. She was obsessed with him and would not stop communicating with him.

106That obsession, I find, sprang from a genuine love she felt for him. But he could not have been more direct about how he felt – he just wanted to be left alone. Yet she would not relent. Not even when, on April 1, 2022, she was faced with police intervention, being arrested, the experience of a night in jail, and criminal charges resulting in a court order prohibiting her from having contact with him.

107The next day, April 2, 2022, she sent him over 300 text messages, including some that specifically reference Mr. Sepiashvili having her arrested, her experience in custody, and the court process. She included messages that she “will go to jail forever for you” “because I love you”. It was only after she was arrested later that day and police took custody of her phone that the messages finally ceased.

108I find the Crown has proven all the essential elements of the charge of criminal harassment beyond a reasonable doubt. Ms. McKinley repeatedly communicated with Mr. Sepiashvili while knowing or being reckless to the fact that he felt harassed at least between the dates of September 3, 2019 and April 2, 2022. These communications caused him to fear for his safety, and that fear was reasonable when viewed in all the circumstances.

109I find her guilty of count 1.

Analysis – Assault Peace Officer

110PC Langford was a credible and reliable witness. He testified professionally and his evidence was confirmed by the body-worn camera footage. I accept his testimony without any reservation.

111However, on his own admission, when Ms. McKinley kicked at him while she was under arrest, he could not tell what her intention was. She was kicking backwards and not facing him at the time. She was under arrest, handcuffed and appeared emotionally distraught. She was exhibiting strange behaviour and had been running through the streets, barely avoiding traffic.

112I am left with a reasonable doubt about her intentions at the time. While it is possible she intended to kick the officer, it is equally possible she was lashing out aimlessly as the toll of the situation overwhelmed her. I am unable to determine that she had the required intent. Mere recklessness on her behalf does not suffice for this charge: see R. v. Tyrell, 2021 ONCA 15 at paras. 34-38.

113I find her not guilty of count 3.

Released: July 13, 2022 Signed: Justice Brock Jones

Footnotes

1He was appointed by Amarshi J. as 486.3(2) counsel on a date prior to the commencement of the trial.