Ontario Court of Justice

Date: 2022-10-31 Location: Central East Region: Oshawa Courthouse

Between:

His Majesty the King

— And —

Jairo Ortiz-Picon

Before: Justice Peter C. West

Heard: Evidence Heard on August 8, 9, 2022 and September 1, 2022 Oral Submissions Heard on September 2, 2022 Reasons for Judgment Given on October 31, 2022

Counsel: Mr. N. Hegedus, counsel for the Crown Mr. N. Kamel, counsel for the defendant, Jairo Ortiz-Picon

WEST J.

1Mr. Ortiz-Picon was facing 24 charges relating to his former girlfriend, Karlo Moreno (Canul) at the beginning of his trial. The Crown requested that the charge of criminal harassment (Count 1) be amended to reflect the time period, 17 February 2021 to 19 July 2021, which was with the consent of the defence. As a result of this agreement, the Crown requested that the additional charge of criminal harassment (Count 7) be withdrawn as the extended time period covered this allegation.

2In addition, the Crown requested that a number of charges facing Mr. Ortiz-Picon be withdrawn; namely, Counts 11, 16, 17, 21 and 22. The trial commenced and three days of evidence was called by both the Crown and the Defence. At the conclusion of the evidence presented at the trial Mr. Hegedus invited me to dismiss a number of the counts as it was his position he had not met his onus to prove those counts beyond a reasonable doubt; namely, Counts 6, 12, 13 and 18.

3Further, at the commencement of submissions, Mr. Kamel conceded the Crown had proven beyond a reasonable doubt Count 14 (June 1, 2021, breach of release order: no communication with Karla Canul), Count 15 (June 1, 2021, breach of release order: not to be within 100 metres of Karla Canul), Count 23 (July 19, 2021, breach of release order: no communication with Karla Canul) and Count 24 (July 19, 2021, breach of release order: remain away from Deputy Minister Path, Oshawa). As a result of this concession I made findings of guilt on those four charges.

4As a result my reasons for judgment are only addressing the following remaining counts:

Count 1: Criminal harassment (February 17, 2021 to July 19, 2022), s. 264.1(1);

Count 2: Unlawfully in a dwelling house (March 19, 2021) s. 349(1);

Count 3: Theft under $5000 (cellular phone) (March 19, 2021) s. 334(b);

Count 4: Theft under $5000 (Ontario Health Card) (March 19, 2021) s. 334(b);

Count 5: Possession of identity card (Ontario Health Card) s. 56.1(1);

Count 8: Harassing Communications (March 28-29, 2021) s. 372(3);

Count 9: Breach of release order (May 23, 2021): curfew 10 pm to 6 am, s. 145(5)(a);

Count 10: Breach of release order (May 24, 2021): curfew 10 pm to 6 am, s. 145(5)(a)

Count 19: Unlawfully in a dwelling house (July 19, 2021), s. 349(1);

Count 20: Mischief under (July 19, 2021), s. 430(4).

5I do not intend to summarize all of the evidence led during this three day trial, although I have carefully reviewed my notes of the evidence and heard counsel’s oral submissions concerning the evidence.

6As in any criminal case, Jairo Ortiz-Picon is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.) [1]. Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

7The onus remains on the Crown to prove Mr. Ortiz-Picon’s guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of his guilt beyond a reasonable doubt. Of course the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt and the application of W. (D.) should not result in a triumph of form over substance. As Justice Cory reiterated in R. v. S. (W.D.) [2], there is no “magic incantation.”

8A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) [3]; Avetsyan v. The Queen [4].

9As the Ontario Court of Appeal in R. v. Hull [5], noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

10I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

11Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant’s evidence but still not being sufficiently satisfied by the complainant’s evidence to find that the case has not been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus [6].

12These are the principles I must use in my assessment of the totality of the evidence led during Mr. Ortiz-Picon’s trial.

Factual Background

13I will deal with the evidence of P.C. Wheaton, Victor Fang and P.C. Gagnon when I am addressing my analysis of the charges that their evidence is relevant to. I intend to set out the evidence of Ms. Moreno and Mr. Ortiz-Picon and Ms. Estephany Barron in a little more detail to better understand my analysis of those witnesses credibility and reliability in my determination of whether the Crown has met his onus of proving Mr. Ortiz-Picon’s guilt on the remaining charges beyond a reasonable doubt.

Evidence of Karla Moreno (Canul)

14She first met Jairo Ortiz-Picon in September 2020 at a friend’s get-together. They were friends first for about three months and then began dating. After they started dating things changed completely. He was controlling, constantly wanted to know where she was and if he could not get hold of her, he would become very angry with her. She had never experienced this before in a relationship. She could not do her normal things without him becoming angry and he would swear and raise his voice. Then he would become physical. It became an every day thing. He got angry with her involvement in social media, who was sending her messages or if she posted something he would question her about it. He was always jealous, questioning her about anyone who was messaging her. They had a big fight in the middle of January 2021, she told him she wanted to break up. They were at her home, 2671 Deputy Minister Path, Oshawa, he did not live with her. On this occasion she tried to leave in her car but he stood in front of her car to block her and then he got in the front passenger seat and was grabbing her while she was trying to drive. She stopped the car and asked him to get out. A passer-by saw what was happening. Mr. Ortiz-Picon took all her belongings, he grabbed her phone and her IDs and got out of the car. Police were called but she did not want to do anything at that point in time. She told the police she just wanted to be left alone and for him to stop calling her.

15Mr. Ortiz-Picon was not on the lease and did not live with her and her daughter at her address. He would come there and stay over some nights, usually when her daughter went to her father’s. He knew she lived there. After the fight in January 2021, she told him to stop calling her. She blocked him on social media, Instagram. She made it clear it was over.

16Mr. Ortiz-Picon continued to call and send Ms. Moreno messages by telephone and social media. She told him repeatedly to stop contacting her and finally she agreed to meet in a public place to say goodbye formally. They made it in a public place and did this. However, after this he started showing up at her house unannounced. She would be at the grocery store and he would come there. She got scared by his behaviour. She was not inviting him to come to her house or tell him to meet her at the grocery store.

17In the middle of March 2021, her friend Nicholas Gonzales-Sanabria had just left her house. It was early in the morning around 7 or 8. Shortly after Nikolas left she heard her front door being opened. She has an alarm system that lets her know if the door opens. She first thought it might be Mr. Ortiz-Picon but thought Nicholas might have returned, so she called him on her phone and asked if he had returned and he said “No.” She went to look and she saw Mr. Ortiz-Picon coming into her home, she screamed, and told Nicholas to call the police. She asked Nikolas to help her. She tried to run to the bathroom but Mr. Ortiz-Picon grabbed her hair and grabbed her. She was dressed only in her underwear with a towel wrapped around her. Mr. Ortiz-Picon grabbed her towel and then grabbed her phone as she was talking to Nicholas. Mr. Ortiz-Picon called her a whore and said other derogatory things to her after he took her phone. He then ran away and left her house. She ran to her bedroom to put on some clothes. She did not give him permission to take her phone. She had no warning he was coming to her house. He also took her IDs, her health card. She was sad about what happened, she did not want things to be like this, but she was getting scared about how things were turning. The police arrested Mr. Ortiz-Picon nearby but they could not find her phone. They found her wallet in the entrance after the arrest, which was empty. The police later gave her health card back to her that same day. Mr. Ortiz-Picon was arrested by the police.

18Ms. Moreno testified after this incident in March Mr. Ortiz-Picon continued to contact her through social media, mostly Instagram and Facebook. He also used different phone numbers. She identified Exhibits 5, 6, 7 and 8 as texts and messages sent by Mr. Ortiz-Picon from April onwards. She had him blocked from his usual Instagram, Facebook and What’s App phone numbers, so he created new ones. She did not alter any of these texts and messages before she provided them to the police. The messages were sent after the incident in March 2021 and are all in Spanish. The messages were translated in court with the agreement of the Crown and Mr. Kamel, on behalf of Mr. Ortiz-Picon.

Exhibit 5 Stop blocking me Please

Exhibit 6 This is the last Instagram I will speak to you I just wish you the best hopefully you read message I love you, I love you a lot, even though you cheated (lied) on me and sent me to jail I hope Valentina is very well and you get to have all the money you always wanted to have I hope the new man you’re with makes you very happy

Exhibit 7 Please just let me say goodbye:( I wasn’t shitty, I gave you all my love and my time :( I cannot not write more from here You have been very happy please do not spoil my life I don’t know whether I will be going to jail, I just want to say goodbye And that you forgive me I have not bothered you but truly I have bought many beautiful things and you were a beautiful experience in spite of it all I only wanted us to break up in a good way (or end up in a good way) Please just let me tell you something somehow don’t show this to the police because I would never do anything to you I forgive you just forgive me and let’s heal and do not hate me Just tell me which way and then you can block me afterwards I don’t have a problem with that just let me say goodbye that’s the only thing I ask you

19These messages were later in April and in June. He sent a lot of messages and I sent some to the police. He would send messages everyday. In June 2021, he showed up at my house. On that day I received an injury, a scratch to my chest. A photograph was taken by the police (Exhibit 3). She did not really know how she got the scratch. She was alone with her daughter at her house. The door bell rang and when she opened the door she saw Mr. Ortiz-Picon there. He pushed her and entered into the house. She tried to stop him from coming into the main floor but he did not stop. She asked him to leave and not anything in front of her daughter. She did not invite him over and she had no warning he was coming to her house. He grabbed her phone, he was bullying her and asking her questions. She knew he would not leave so she grabbed her daughter and ran outside to run to the street. He followed her. She believed he was trying to prevent her from leaving the house. She saw her neighbour and another person and she asked for help. They said they would call the police.

20After this he would send flowers and food outside of her house. She saw him outside of her house after this at the end of June. Ms. Moreno identified a series of text messages, Exhibit 8, which she said she received from Mr. Ortiz-Picon in July 2021.

Exhibit 8 I love you a lot but all the bad stuff you did to me after having been so nice to me and also I was super good I don’t know what happened seriously I don’t even know where to be I’m running away like a bastard Karla please don’t block me I don’t want to bother anymore I only want you to tell me if you are well I am not going to create anymore accounts or anything I’m only very worried about you want you just as the way you left you always end up doing things because of anger Seriously I love you with my life and the worst thing is I didn’t do anything to you to end up like that I was even telling you that I was going to send you all of the money How much do I have to send you I’m on the street Realize how my life went to shit because of your attack I’m truly going to go to hell to jail Only please be okay with Valentina Tell me that you are okay please Are you with the police Please don’t do anything else to me Karla just tell me you’re okay I can not show up over there anymore My life is already ruined I didn’t want to end like this I didn’t even want to go out I wanted to stay with you Karla Thank you Please Just calm down Let’s find out With beto How much it is Your car’s thing You don’t love me if you’re treating me that way I didn’t do anything to you I have to run away Video chat 7:21 Video chat ended Audio Call 5 mins I adore you Please Call me whenever you can My life is shit I know you don’t care about anything that happens to me But I hope I die If you truly love At least you’re going to want to hug me before I go Video chat 17:54 Don’t do this to me seriously I won’t be able to see you again Karla my situation is fucked Fucked I won’t be even able to hug Valentina I won’t be able to do anything Video chat started 17:56 I beg you don’t do this to me anymore I only want you to be well I don’t why you always want to do this to me

21The last incident was in the middle of July in her house. The police showed up and Mr. Ortiz-Picon was arrested. She was in the house with her daughter and a female friend. They saw Mr. Ortiz-Picon on the stairs inside the house. She did not know how he got in. She and her friend asked him to leave. He did not leave. She tried to get her phone to call the police but he took it. Her friend called 911.

22When the police came she told them there was no problem but they kept asking to come in. She finally let them come in and she told them to be careful as her daughter was sleeping in the master bedroom. At some point the police went upstairs and arrested Mr. Ortiz-Picon. After the arrest she saw a hole in the wall on the stairs. She had to pay $300.00 to repair the wall, but she did not see how it happened.

23In cross-examination Ms. Moreno agreed that Mr. Ortiz-Picon was good with her daughter, Valentina, and they got along well. Even after the incidents in February and March he would come and visit her in April and she accepted this. It was to say goodbye to her daughter. She wished they could have ended as friends. After March she was trying to break up with him. He would contact her and she would always feel bad for him and see him and then she would realize she had to break up with him. She agreed to the suggestion after March incident she did not see him, except to say goodbye to her daughter on two occasions. She met him in a public place because he did not know how he would react. She agreed she saw Mr. Ortiz-Picon at her place and at his apartment. She testified she never met Mr. Fang, Mr. Ortiz-Picon’s roommate but knew his name because Jairo would call her with Mr. Fang’s phone.

24She denied giving him her Health Card to get rid of. He took it and ran away. The police gave it back to her after he was arrested. There was an Agreed Statement of Fact that Ms. Moreno’s Health Card had an expiry date of 2020 03 27, Exhibit 9.

25When they would get into arguments there would be screaming between them and she would ask him to leave or to let her leave. She denied ever getting physical with him, she never slapped him or scratch him. She would always try to run away from him but he would not let her and she would push him away. Mr. Kamel played a video of an incident. The video was six seconds in length and the words spoken by Mr. Ortiz-Picon and Ms. Moreno were in Spanish. Once again the Court Interpreter interpreted what was being said. Mr. Kamel did not know the date this video was recorded.

Mr. Picon-Ortiz: “What are you doing, are you going to hit me, are you going to hit me?” Ms. Moreno: “You are recording me? So get away from me. Go away, go away, leave, leave.”

26Ms. Moreno recognized herself. Valentina was in the bottom of the video. She recognized this was when he would not leave her house and took place in her bathroom.

Ms. Moreno: “Get away from my house.” Mr. Ortiz-Picon: “Yes I’m going to leave from the main house.” Ms. Moreno: “Go away, go away.” Mr. Ortiz-Picon: “Look at the child (girl)”

27The second Interpreter said she understood some of the words in Spanish when Ms. Moreno and Mr. Ortiz-Picon were yelling at each other but some of the words were unintelligible.

Ms. Moreno: “You are recording me stupid (or dumbass).” Mr. Ortiz-Picon: “Hey look.” Ms. Moreno: “Why are you recording me dog.” Mr. Ortiz-Picon: “Hit me, hit me more.”

28Ms. Moreno testified the second video was in the bathroom, and was part of same incident. She was asking Jairo repeatedly to leave her house. It was in February 2021, and shortly after this he literally locked himself in the bathroom. He would not leave. He was punching his fist on the wall. She just wanted him to leave but he would not, so she had to leave with her child from her house. During the playing of these two short video clips Ms. Moreno became visibly upset and was crying.

29She agreed she went with him to Wasaga Beach. She did not remember when they went. It was before the incidents. He would bully her and this was why she went. We went one time with one of his friends, a female friend and another friend and her daughter. She did not agree it was after the March incident. After March I was trying to break up with him. She did not know the timing but she did remember going to the beach. It was not in September or October. Exhibit 11 is a photograph of Ms. Moreno with Estephany Barron, a friend of Jairo’s. A second photograph, Exhibit 12, was shown to Ms. Moreno, which showed Mr. Ortiz-Picon, Ms. Moreno and Estephany Barron and another gentleman sitting around a table outside on a sunny day in short sleeved shirts. Mr. Kamel indicated to Ms. Moreno the meta data from the digital photo (Exhibit 11) that was displayed on the screen in court indicated the photograph was taken on June 12, 2021, at Wasaga Beach and Exhibit 12, was taken on June 20, 2021. Ms. Moreno responded she did not know when they were at the beach. The Crown objected about Mr. Kamel providing evidence about the meta data himself and Mr. Kamel advised he was not relying on what he believed the meta data indicated, rather, he would be arguing there was a reasonable inference when the two photographs were taken.

30The final piece of evidence was a 911 recording from July 4, 2021, made by Ms. Moreno, where she indicated she and Mr. Ortiz-Picon had been fighting and she was asking for the police to come. Mr. Kamel was to provide the 911 tape and a transcript of the portion played in court. The 911 call and transcript were marked as Exhibit 13 and 13A respectively on September 1, 2022.

Evidence of Estephany Barron

31Estephany Barron is a good friend of Mr. Ortiz-Picon. They first met in July 2020. She testified it was never a romantic relationship. She met Karla Moreno in September 2020. It was her evidence that the relationship between Mr. Ortiz-Picon (Jairo) and Ms. Moreno (Karla) was toxic right from the beginning. They were boyfriend/girlfriend from November 2020. Things between them started turning bad in January 2021. They used to argue all the time. She described Karla slapping Jairo all the time. She described seeing Jairo with scratches and purple bruises many times. Ms. Barron described Karla as someone who got drunk. Described an occasion Karla crashed her van in a parking lot and blamed Jairo.

32Ms. Barron testified that she observed Ms. Moreno scratching herself on a number of occasions and it was not Jairo who was scratching her. This was never put to Ms. Moreno in cross-examination by Mr. Kamel and I will have to address this later in my reasons.

33Much of her information about Ms. Moreno was provided by Mr. Ortiz-Picon. She never went to Karla’s house to visit Jairo or Karla. She went on two trips with them and her ex-boyfriend in June 2021, to Wasaga Beach and Bruce Peninsula. Jairo would come to her place, three times a month. He would come when he and Karla had been arguing. Then Karla would pick him up, their relationship was up and down. She described being at parties with them. Karla was always drunk. At a Halloween party in October 2020, Karla was drunk and attacked Jairo in front of the people there. According to Ms. Barron, Karla had an anger problem. None of this was not put to Ms. Moreno in cross-examination.

34She identified the photographs filed by the defence, Exhibit 11, a photograph taken of Ms. Barron and Ms. Moreno (June 12, 2021, Wasaga Beach) and Exhibit 12, a photograph of Jairo, Karla, Ms. Barron and her ex-boyfriend (June 20, 2021, Bruce Peninsula).

35Ms. Barron testified Karla’s ex-boyfriend was Nikolas Gonzales-Sanabria. Karla was dating him when Ms. Barron first met her in September 2020. It was Ms. Barron’s evidence Karla was dating both men at the same time. She initially testified she saw Ms. Moreno more than three times and this increased to twelve times. She saw Karla slap Jairo three times.

36In cross-examination Ms. Barron maintained she believed that Karla’s relationship with Jairo was romantic throughout the whole time period. Jairo was staying at her house, he was happy. She could not remember dates she saw them together between March and July but she saw them together several times. She was better friends with Mr. Ortiz-Picon. She does not have any feelings towards Ms. Moreno one way or the other – neither bad or good. She testified she was totally neutral. She knows Mr. Ortiz-Picon and he would never do anything bad to anyone. Ms. Moreno would verbally abuse Jairo. He would never say anything bad to Karla when she was verbally abusing him.

37When the police would get involved Mr. Ortiz-Picon would remain calm. He would tell Karla to relax. He would never said any swear words to her when Ms. Barron was there. She did not remember if she was there when Jairo was arrested on March 19, 2021. She then testified she was never present when Mr. Ortiz-Picon was arrested. She agreed she was not present on June 1 or July 19, 2021, when the police arrested Mr. Ortiz-Picon on those dates.

38At one point in her evidence Ms. Barron testified she believed Karla had an alcohol problem. In cross she testified for the first time that Karla told her she would lie to the police to get Jairo in trouble. Karla “confessed” this to Ms. Barron. In Cross-examination Ms. Barron increased the number of times she saw Ms. Moreno physically assault Jairo to two to three times.

39Ms. Barron believed Karla was sleeping with someone else. She maintained that she did not have anything against Karla. She was sure Karla did these things to her “very good friend” yet she was “totally neutral.” She only came to court to say the truth and be honest. She did not come to court to make Ms. Moreno sound like a terrible person – she came to tell the truth.

40When Ms. Barron was asked if Ms. Moreno had the kind of relationship with her where she would tell her personal things, Ms. Baron testified everything she knew was through Mr. Ortiz-Picon. Ms. Moreno told Ms. Barron she beat up Jairo because he couldn’t call the cops. She said she scratched herself 2-3 days before the incident. Ms. Moreno only had one of this type of conversation with Ms. Barron.

41Ms. Barron maintained in cross she never once saw Mr. Ortiz-Picon yell at Karla. Jairo never beat up Karla or cursed her or yelled at her.

42Ms. Barron testified she knew that Mr. Ortiz-Picon was on conditions not to have contact with Ms. Moreno and Ms. Barron told him he shouldn’t be around her.

43In re-examination for the first time Ms. Barron said that Ms. Moreno showed her that she had scratched herself on her chest.

Evidence of Jairo Ortiz-Picon

44Mr. Ortiz-Picon agreed he first met Karla in September 2020. They started seeing each other by October but she had not ended her relationship with her boyfriend, Nikolas. Mr. Ortiz-Picon testified once he was at her place and her ex showed up with flowers and she asked Mr. Ortiz-Picon to leave. Three weeks later she told him they could see each other but she continued seeing her boyfriend on the weekends. In the beginning he accepted this throughout November, December and January. He began living with Karla and her daughter as his landlord had told him he had to find another place to live, and she said he could come until he found a new place. This turned into him just always living with Karla.

45In March 2021, they started having arguments over Karla continuing to see her previous boyfriend, Nikolas. On one occasion she told him he had to leave as Nikolas was coming over. It was Mr. Ortiz-Picon’s evidence he decided the situation with Nikolas could not continue, it was “aggressive.” On March 18, 2021, he had found another place to live with a friend (Victor Fang) at 10 Avenue of Champions in Oshawa and had moved in. He went to Karla’s place to pick up his things and they began to argue. It was his position he never went inside her house. He told her he was tired of what was going on and he was going to tell Nikolas the whole truth. She said to him, “Fuck you,” she was going to tell Nikolas. She called Nikolas and he overheard her tell Nicholas that he was there and was going to beat her up and to please call the police. He asked why would she do this and he walked away. When he was walking away he saw Nikolas arrive. He told Nikolas he did not want to talk to him and went to leave but then he heard the sirens and saw the police cars, he turned around, came back and asked them what had happened. The police just arrested him without knowing what was going on, took him to the police station and then released him on bail. He knew he had conditions.

46Mr. Ortiz-Picon said he would speak the truth that he did write to Karla Moreno and ask why she had done this to him. She again called the police and he knew there was a warrant for him. This led to more charges and another bail. He initially testified after this he never spoke to her again, as he knew his life in Canada was in danger.

47Yet in April, Karla again wrote to him and wanted to meet him to say goodbye and she wanted him to say goodbye to Valentina. He did see her at a Go station in April. She kissed him, he saw her daughter. Karla said she would change and apologized for all she had done to him. He believed her and the same cycle began again. She told him she would help him out and they started going out again. He knew this was a mistake but he did it for her because he loved Karla and her daughter very much. From April to July there were like a family, shopping for groceries, go to beaches, Niagara, he went to work and she would be waiting for him with Valentina. Just like a family. They started having arguments again. She told him she did not know why she could not control herself. Mr. Ortiz-Picon blamed Ms. Moreno for his decision to start seeing her again. She told him she would work things out and call the police because she knew he had conditions not to contact her. Mr. Ortiz-Picon testified he told Victor Fang that it was Karla’s idea for him to move back in with her but this conversation was never put to Victor Fang in cross-examination.

48Mr. Ortiz-Picon testified Karla told him to come live with her because the police would be coming for him at 10 Avenue of Champions to arrest him. He believed she was worrying about him. He moved his few bits of belongings to her place. He denied ever being violent with Karla. He never threatened her with violence. There would be arguments though between them and she would hit him and cause bruises and he would take photos and he would call Estephany to tell her. One day Karla stole his cell because she knew all the proofs he had were in it. She never gave it back. He told her he had the proofs in another place but she never gave the cell phone back. She gave him another cell phone instead of the phone she took. Throughout the whole relationship she was violent with him, 20-30 times. He would just try to calm here down or lock himself in the bathroom. Once when he was beaten up very badly, he saw his face destroyed. This was the day she stole his cell phone. She then started beating herself up so he started taping her so the police would know when they arrived that he hadn’t beaten up Karla-she did it to herself. This was when she took his cell phone and he had to leave because the police were coming.

49At some point he said Karla called the police again, as she knew the police would arrest him and put me back in jail.

50Mr. Ortiz-Picon denied taking Ms. Moreno’s phone or her Health Card. It was his position she had given him the Health Card to throw away for her.

51He testified about another incident in Toronto on July 4, 2021, where Karla was drunk and got in an accident with her car and damaged it, which she blamed on him. She started beating up on him. There were cameras at this place. It was a friend of hers who called the police.

52On July 19, 2021, he was at her place because she invited me. He wanted to pick up his own belongings. She threw all his things in the garbage. He did not know why she did this. He went inside her place and she told him to pack up his things. He testified they had sexual relations and he stayed with her for several hours. While he was there he helped put Valentina to bed. He testified he went into the bathroom and he found a used condom in the bathroom and he confronted her with this. It was his position he called the police by calling 911 because he wanted the police to come. Again, from my review of Ms. Moreno’s evidence, none of this evidence provided by Mr. Ortiz-Picon was put to Ms. Moreno in cross by Mr. Kamel and I will have to deal with this when I deal with issues of credibility.

53Mr. Ortiz-Picon said he was fed up with everything and he called 911 and said he needed the police. He then became aware the police were already there. However, he then testified Ms. Moreno had asked him to just go up to the third floor and stay there for awhile and he said okay. Later on he heard the police were there shouting out his name. They were coming upstairs with a “laser – a gun,” he didn’t know what it was called, shouting out he should put his hands up. He cooperated in the best way with the police,. The police did not care and three police began beating him, put him on the floor. They were asking if he remembered when he had beaten up Ms. Moreno. One officer was more upset with him than the others and he put the handcuffs on so tightly that he could not feel his fingers for an hour. He believed there were photos of this, which the police never provided. He had his hands handcuffed behind is back and one of the officers pushed him into the wall. They were handling him as if he was a puppet taking him down the stairs. When they put me into the scout car one of them said to him that they were finally going to be able to send him out of their country. Again, none of this evidence was put to the arresting officer, P.C. Gagnon, who was called as a witness.

54In cross-examination Mr. Ortiz-Picon agreed he had contact with Ms. Moreno and was at her home. He had contact by phone. On March 19 he went to her house because she invited me. He was asked about June 1 but he did not recall the dates well. He could not say whether he was there on June 1. He agreed he was in contact with Ms. Moreno in June 2021. He saw photograph from Wasaga Beach and he was with Ms. Moreno then. He also went to Bruce Peninsula in June. He was in contact with Ms. Moreno in May 2021. He started talking with her in April. He agreed he was in contact with Ms. Moreno in month of July too as he was trying to get his belongings.

55He was arrested on March 19, 2021. He overheard Karla speaking with Nikolas. He considered this as them breaking up. He agreed he wrote to Karla why she had done this to him the day after I got out of jail, March 20. He saw text messages that were made exhibits – What’s App and Instagram messages and Facebook messages. The Facebook messages were after the July 4, 2021. The other messages were after he was arrested on March 19. The What’s App and Instagram messages he did not remember when he sent them. She also sent messages to him.

56It was put to Mr. Ortiz-Picon about making “fake accounts” and he did not initially agree. He agreed his Instagram account was :Andres Picon. He was asked if he made an account “Michele Jordan” to send messages to Ms. Moreno and he said he could not remember just that he did send her messages on an Instagram account. He agreed he did not use the Andres Picon account.

57He was arrested and released on a Release Order on April 5. Mr. Ortiz-Picon agreed he was aware of the conditions not to have any contact with Ms. Moreno. He agreed he got back with her and he did this because she said she would help him. He agreed he made a promise to the court and broke that promise.

58When he was arrested he agreed he had Ms. Moreno’s Health Card because he had a relationship with her. She asked him to throw it away because it was expired. He did not know what he was supposed to do with it. He knew it was expired for over a year. She did not tell him why she wanted him to throw it away or why she could not throw it away.

59Ms. Moreno introduced the idea into his head that he was going to live with her and she would solve his problem with the police. She told Victor Fang this around end of May but he did not really remember the date.

60Ms. Moreno stole two of his cell phones. On July 19, he left his cell at her home and it was not turned over to police. The other phone was the one she took when he was video taping her scratching herself. Two videos shown in court were ones he took. This is same cell phone she stole from him when he was video-taping her scratching herself. The incident occurred sometime in June 2021.HeI was able to get these two videos (Exhibit 10A and 10B) from the cloud. She did not know they were in the cloud. He had his photos on both Google Photos and on the iCloud. He testified he took many photos of injuries-bruises of himself, which he said were caused by Ms. Moreno. He agreed these photos were stored on Google Photos and iCloud and he could access them without the cell phone Karla taken from him. He agreed he had all of those photos but it was up to his lawyer as to what photos were shown in court.

61The two videos were taken in her bathroom. He agreed he was yelling back at her and he was saying stay away from me. He agreed in the videos she was telling him to leave her house. In the videos she hit him when she realized he was recording her. Mr. Ortiz-Picon maintained she beat him up 20-30 times. He is 170 cm tall and 80 kgs in weight. Ms. Moreno is much smaller than he is. He testified Ms. Moreno beat him up so badly his face was destroyed. Once she almost took out his eye with one of her fingernails.

Analysis

62I intend to deal with each of the charges still facing Mr. Ortiz-Picon separately. As I indicated at the outset of my reasons, the Crown must prove each of the charges beyond a reasonable doubt, which is a very high standard. Mr. Ortiz-Picon does not need to prove anything. Further, my assessment of credibility should not and cannot become a credibility contest between the two principal witnesses in this case, Ms. Moreno and Mr. Ortiz-Picon. However, I am instructed to assess credibility of the witnesses by comparing their evidence in light of the whole of the evidence.

Overall Assessment of Credibility and Reliability of Witnesses

63I found Ms. Moreno to be a fair witness who did not embellish her evidence or attempt to cast Mr. Ortiz-Picon in the worst possible light. She candidly conceded that she continued to see him after he was charged. She conceded things that were unfavourable to her. She had difficulty with dates and timing of incidents or events but in my view this is not surprising given the passage of time from when those events occurred and the nature of the tumultuous relationship she and Mr. Ortiz-Picon clearly had by all accounts. In my view she was not evasive in answering questions put to her in cross-examination. I did not hear any evidence relating to the typical responses intimate partners have with each other when they encounter relationship difficulties. However, it was clear from the totality of the evidence that it was Ms. Moreno who was attempting to end her relationship with Mr. Ortiz-Picon over the six or seven months from February to July 2021. The texts and social media messages (Exhibit 5-8) support Ms. Moreno’s evidence that she was the one attempting to break off with Mr. Ortiz-Picon and clearly indicate Mr. Ortiz-Picon being the one who was having a great deal of difficulty accepting this and in turn was the one pursuing Ms. Moreno. In my view those texts and messages clearly depict Mr. Ortiz-Picon’s obsession with Ms. Moreno.

64The same cannot be said for Mr. Ortiz-Picon, who I found to be quite evasive in a number of areas in his evidence. First, it was his evidence that he was the one attempting to break up with Ms. Moreno but she was the one asking him to move in with her when there were warrants by the police seeking his arrest. He testified she convinced him to come back and that she was going to speak to the police to get the charges dropped. I do not accept this evidence and in my view the texts and messages plainly demonstrate its falsehood. Mr. Ortiz-Picon’s unwillingness to answer the Crown’s questions concerning the fake accounts he created on Instagram, Facebook and What’s App, which he utilized in sending messages to Ms. Moreno clearly establishes his lack of being forthright and candid. These accounts were in other individual’s names and not his name. He ultimately admitted the Facebook messages were written by him after July 4, 2021, just 5 days before he was found again in Ms. Moreno’s home. In my view his evidence that it was Ms. Moreno who was writing to him and requesting they continue their relationship is completely disproven by the texts and messages he sent. There are no messages from Ms. Moreno to Mr. Ortiz-Picon as part of the chain of messages filed in Exhibits 5 to 8. His assertion in his evidence that he was only contacting her to get back his belongings that were still in her residence is not supported by any of the texts or messages filed, which do not mention anything about his wanting his property back. Mr. Ortiz-Picon was evasive and not forthright in the answers he provided in cross-examination on these social media accounts.

65There were numerous areas of Mr. Ortiz-Picon’s evidence where his evidence was not put to Ms. Moreno in cross-examination by Mr. Kamel so that his evidence could be properly assessed. For example, it was not put to Ms. Moreno that she stole Mr. Ortiz-Picon’s cell phone, yet Mr. Ortiz-Picon testified she stole two of his cell phones. Another example related to Mr. Ortiz-Picon’s evidence that he was the one trying to break up with Ms. Moreno and that Ms. Moreno was the one who convinced him to move back in with her at her home. This also occurred respecting evidence given by Estephany Barron. I raised this issue with Mr. Kamel on a number of occasions throughout the trial evidence, as well as during submissions. The failure to cross-examine a witness on a specific issue tends to support an inference that the opposing party accepts the witness’s evidence on that specific issue during submissions. In many instances Mr. Kamel advised the evidence given by his client or Ms. Barron was not known to him prior to it being said in court. The Crown also raised concerns about the failure to cross-examine Ms. Moreno on these issues. The Crown did not seek to recall Ms. Moreno as a witness in light of this circumstance. In Browne v. Dunn [7], Lord Herschell, L.C., explained that if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence.

66Mr. Ortiz-Picon’s evidence concerning police brutality and racist comments by P.C. Gagnon respecting his arrest on July 19, 2021, were not put to P.C. Gagnon. I will have more to add respecting this issue. Similarly, conversations Mr. Ortiz-Picon testified he had with Victor Fang and Ms. Moreno had with Victor Fang concerning Mr. Ortiz-Picon moving out of the apartment and back to Ms. Moreno’s residence were not put to Victor Fang when he was cross-examined. They were also not put to Ms. Moreno in cross-examination. I do not accept Mr. Ortiz-Picon’s evidence relating to the allegations still outstanding against him. Further, as I will discuss when I deal with each of those charges, his evidence did not raise a reasonable doubt.

67Mr. Ortiz-Picon attempted to portray Ms. Moreno as the one who was the aggressor and violent one in their relationship. He alleged she assaulted him 20-30 times. He testified he had taken photographs of his injuries each time Ms. Moreno had assaulted him causing injury and bruising. He posted these photographs and he said there were also a number of videos he took to Google Photos and his iCloud. To support this allegation he provided two videos (Exhibits 10A and 10B).

68I have watched the two very brief videos several times. In cross-examination Mr. Ortiz-Picon agreed the two videos are part of the same incident in Ms. Moreno’s bathroom in her townhouse but he did not provide any explanation for why the videos were separated or why they were not one continuous video. Mr. Ortiz-Picon did not provide the complete video taken of this incident. What is clear from the videos is that from the outset of what was provided Ms. Moreno is asking him to leave her house and he is refusing. Initially in Exhibit 10A she is calm and Mr. Ortiz-Picon’s voice is raised and he says, “Are you going to hit, are you going to hit me?” In my view these comments suggest a set up by Mr. Ortiz-Picon. Ms. Moreno tells him to leave her house and then she realizes he is recording her with his phone and she asks if he is recording her. The first video ends. Exhibit 10B commences with her continuing to ask Mr. Ortiz-Picon to leave her house and then she is trying to grab his cell phone, her voice is raised and there is clearly a struggle for the phone as the recorded images are all over the place. Both of them are struggling with the other and both their voices are loud and raised. Both of them are clearly upset with the other. Everything being said is in Spanish and had to be interpreted with a number of things said being unintelligible. It is my view the portions of the video provided corroborate Ms. Moreno’s evidence that Mr. Ortiz-Picon attended her house when he was not permitted to be there or have contact with her. Ms. Moreno’s open hand is flailing around trying to grab the cell phone and in the process of their struggle with each other, her open hand comes into contact with Mr. Ortiz-Picon’s face. Mr. Ortiz-Picon is pushing her, the bathroom is small and they are struggling with each other over this phone in a confined area.

69Mr. Kamel submitted these videos and the 911 call from Toronto, dated July 4, 2021, (Exhibit 13A), where Ms. Moreno called 911 because she was afraid Mr. Ortiz-Picon is going to come to her house again. She advised the 911 operator that they had been fighting on that day (“ we actually fight” “he beat and I beat him back ”), demonstrated Ms. Moreno had not told the truth when she testified she was never violent with Mr. Ortiz-Picon. Ms. Moreno’s evidence was that she did not assault Mr. Ortiz-Picon, rather, she defended herself when she would be asking him to leave and he would not. In my view the videos do not support Mr. Kamel’s submission. I have serious concerns about the accuracy and authenticity of these videos given that they are separated into two videos, despite depicting one continuing incident. There is a reasonable inference that there are gaps in the recording that distort what can be observed occurring. Further, it is my view the slap by Ms. Moreno observed on the second video is during an altercation between both parties during a struggle over the cell phone and was not a deliberate assault by Ms. Moreno. There is a reasonable inference that Ms. Moreno’s slap was defensive given Mr. Ortiz-Picon testified the incident occurred in June 2021, when he was on at least two release orders prohibiting him from contacting Ms. Moreno or attending her residence. A further concern is Mr. Ortiz-Picon’s evidence concerning the 20 or 30 occasions that Ms. Moreno assaulted him and caused bruising to his face, arms, body and on one occasion “destroyed his face.” He testified he had photographs on his Google Photos and the iCloud, which he could access, but which were not provided to the court. It is my finding that Ms. Moreno did not lie when she testified she was not violent towards Mr. Ortiz-Picon, rather, she defended herself when he came to her residence in contravention of his bail and she was trying to get him to leave but he would not.

70The defence called Estephany Barron as a witness to support and corroborate Mr. Ortiz-Picon’s evidence. It was my view that Estephany Barron had an agenda to do and say whatever she could to assist Mr. Ortiz-Picon’s position. She had an agenda, which was particularly revealed both in her evidence in-chief and her cross-examination. She did everything she could to vilify Ms. Moreno, often offering negative observations of her that were not responsive to the question being asked. Ms. Moreno was a drunk, who flirted with other men. In my view there were a number of occasions that Ms. Barron seemed to be answering questions that were not even asked.

71It was clear from Ms. Barron evidence that she did not know Ms. Moreno very well, as she only saw her at a few events. Yet Ms. Barron testified in-chief that Ms. Moreno confided it her that all she had to do to get Mr. Ortiz-Picon in trouble was to scratch herself and say he did it. This was not put to Ms. Moreno in cross-examination. In cross when Ms. Barron was confronted with her evidence that she and Ms. Moreno were not close so why then would Ms. Moreno confide this to her, she not only continued to claim Ms. Moreno said this to her – she now added that Mr. Ortiz-Picon was present when this was said to her. This was not confirmed by Mr. Ortiz-Picon. In her re-examination she described for the first time that Ms. Moreno had actually scratched herself on her chest in Ms. Barron’s presence. If this conversation with Ms. Moreno actually occurred, it is my view the other two pieces of evidence would have come out in-chief. That did not occur and in my view this was an example of Ms. Barron’s agenda to do whatever she could to assist her good friend, Mr. Ortiz-Picon and this detrimentally affects her credibility. Her evidence is also in contrast to Mr. Ortiz-Picon’s evidence that he did not even recall a scratch on Ms. Moreno’s chest in June 2021.

72I found Ms. Barron’s evidence to be incredible and unbelievable. She often provided answers that were completely unresponsive to the question being asked. Her description of Ms. Moreno was completely negative and uncomplimentary, yet it was her position she was completely neutral when it came to Ms. Moreno. Despite Ms. Moreno doing all manner of horrible things to her friend Mr. Ortiz-Picon, she felt neither positive or negative feelings toward her. This does not make any sense whatsoever. It is my view that it would be dangerous to accept any of Ms. Barron’s evidence given her obvious agenda to say whatever she could think of to support her friend.

Offences from March 19, 2021

73There are four outstanding charges arising on March 19, 2021.

Count 2: Unlawfully in a dwelling house (March 19, 2021) s. 349(1);

Count 3: Theft under $5000 (cellular phone) (March 19, 2021) s. 334(b);

Count 4: Theft under $5000 (Health Card) (March 19, 2021) s. 334(b); and

Count 5: Possession of identity card (Ontario Health Card, March 19, 2021) s. 56.1(1)

74In my view the Crown has proven these four charges beyond a reasonable doubt. As I indicated I accept Ms. Moreno’s evidence respecting Mr. Ortiz-Picon attending her home on March 19, 2021, just after her friend Nikolas had left. This is similar to Mr. Ortiz-Picon’s evidence in that he spoke of arriving outside Karla’s house to pick up his belongings and them getting into an argument. I do not accept his evidence concerning his not entering her house. I find he entered the house shortly after Nikolas left, he was upset because of Nikolas, Ms. Moreno had broken up with him, she called Nikolas and said Mr. Ortiz-Picon was in her house uninvited and for him to call the police. I find Mr. Ortiz-Picon grabbed her and pulled her towel off. He took her cell phone when she was speaking to Nikolas and also took her wallet and removed her Health Card.

75Mr. Ortiz-Picon’s explanation for having the Ms. Moreno’s Health Card does not make any sense, there would be no reason for her to give it to him to throw away and I do not accept his evidence on this. Further, I accept the evidence of P.C. Gagnon who arrived at 2671 Deputy Minister Path in Oshawa at 7:32 a.m. He spoke to Nikolas Gonzales-Sanabria. He searched Mr. Ortiz-Picon’s jacket after he was placed under arrest. He found Mr. Ortiz-Picon’s Columbia passport and an Ontario Health Card in the name of Karla Canul, who is Karla Moreno.

76I find based on the totality of the evidence respecting these four charges that the Crown has proven Mr. Ortiz-Picon’s guilt beyond a reasonable doubt. I reject Mr. Ortiz-Picon’s evidence respecting his conduct on March 19, 2021, and it did not raise a reasonable doubt. I accept the evidence of Ms. Moreno, for the reasons indicated previously in favour of her credibility and reliability. I make findings of guilt in respect of those four charges from March 19, 2021. There will be convictions on the charges of unlawfully in a dwelling house and theft under $5000 in respect of the cell phone. I am asking counsel to address me on the application of R. v. Kienapple [8], respecting the theft under $5000 charge respecting the Ontario Health Card and the possession of identity card, also respecting the Ontario Health Card at the conclusion of my reasons for judgment.

Harassing Phone Call Offence, s. 372(3) from March 28-29, 2021

77Ms. Moreno identified Exhibits 5 to 7 as being texts and messages sent by Mr. Ortiz-Picon to her. P.C. Gagnon testified he was dispatched to 2671 Deputy Minister Path respecting a domestic incident at 12:38 a.m. and met with Karla Moreno who provided him what came to be marked as Exhibits 5, 6 and 7. Exhibits 5 and 6 were identified as Instagram messages from Miche.lljordan Instagram (Exhibit 5) and from excl.usiveimports Instagram (Exhibit 6), which Ms. Moreno testified were from Mr. Ortiz-Picon, who had just been arrested on March 19, 2021. I was advised by the Crown that he neglected to file the undertaking Mr. Ortiz-Picon was released on after the March 19 arrest. Both of these Instagram accounts were not in Mr. Ortiz-Picon’s name. His Instagram account, according to Ms. Moreno and Mr. Ortiz-Picon was andres.picon. It was Ms. Moreno’s evidence she knew these messages were from Mr. Ortiz-Picon having regard to the messages and their context and subject-matter. Mr. Ortiz-Picon admitted he sent these text messages to her when he testified.

78Ms. Moreno clearly did not want to speak or receive messages from Mr. Ortiz-Picon given his first message in Exhibit 5, which indicated in Spanish, “Stop blocking me, please.” She testified she had broken up with him in March 2021 and blocked him from being able to send her texts and messages. Mr. Ortiz-Picon’s response was to create a number of fake Instagram accounts (Exhibits 5 and 6) and use a phone number Ms. Moreno did not recognize (Exhibit 7) to send What’s App messages. Again in Exhibit 7 the content of the messages establish they were sent by Mr. Ortiz-Picon and he admitted sending them. I’ve already found him to be evasive respecting his setting up fake accounts to be able to by-pass Ms. Moreno’s blocking him from communicating with her.

79The only issue therefore is whether these messages were made without lawful excuse and with intent to harass a person.

80In R. v. Kordrostami [9] the Ontario Court of Appeal defined the word "harassed" as it appeared in section 264 of the Criminal Code and stated:

“ Harassed" has been held to be synonymous with "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered". This list of words is not cumulative. They do not replace the word "harassed" in the Criminal Code, but are individually synonymous with it.

81In R. v. Sabine [10], New Brunswick Court of Queen's bench found that the word "harass" is synonymous with "annoy".

82I agree that the intention to harass as contained in the section requires a finding of "specific" intent (see R. v. Simanek [11]).

83Mr. Ortiz-Picon knew Ms. Moreno did not want to communicate with him or receive any communications from him as she had blocked him. I have no doubt that Mr. Ortiz-Picon’s repeated telecommunications were done with the intention to harass Ms. Moreno, given his knowledge that she had broken up with him and blocked him from being able to send her texts or messages. His messages, as I’ve already indicated reflect his obsession with her and the fact he was prepared to ignore how she might feel if he continued to send her texts and messages. In my view the Crown has proven the essential elements of this charge beyond a reasonable doubt. There will be a finding of guilt and a conviction registered.

Curfew Breach Charges from May 23, 2021 (Count 9)and May 24, 2021 (Count 10)

84Mr. Ortiz-Picon was on a Release Order (Exhibit 2) dated April 5, 2021, which included a condition (5) that he abide by a curfew from 10 pm to 6 am except for medical emergencies. On May 23, 2021, P.C. Gagnon attended 10 Avenue of Champions, Apt. 105 in Oshawa at 12:52 am respecting a compliance check for Jairo Ortiz-Picon to determine if he was abiding by his curfew. He took steps to see if Mr. Ortiz-Picon was in the apartment as required by his Release Order. Mr. Ortiz-Picon did not answer the door. His roommate Victor Fang opened the door. P.C. Gagnon called the phone number he was provided for the accused. No one answered. He called Lakeridge Health to determine if Mr. Ortiz-Picon was a patient. He was not. Mr. Fang offered to open Mr. Ortiz-Picon’s bedroom door, which he did. The officer did not enter the room but looked in, nobody was in the bed. P.C. Gagnon looked in the bathroom and nobody was there. He also emailed Mr. Ortiz-Picon but did not receive a response.

85P.C. Gagnon returned on May 24, 2021 to Mr. Ortiz-Picon’s apartment for a compliance check around 2 am. Once again Mr. Ortiz-Picon was not present in the apartment common areas or in his bedroom. When P.C. Gagnon returned the next evening on May 25 for a compliance check Mr. Ortiz-Picon was there and was arrested for breach of his curfew on May 23 and 24, 2021. He was released on an undertaking that same day.

86Mr. Kamel did not ask any questions of P.C. Gagnon respecting the two compliance checks when Mr. Ortiz-Picon was not in his residence in compliance with his curfew. Further, Mr. Ortiz-Picon could not recall where he was on May 23 and 24, 2021, in cross-examination by the Crown. This was, in my view, a further example of Mr. Ortiz-Picon being evasive in answering questions. He had already indicated in his evidence in chief that Ms. Moreno had invited him to come live with her in April 2021 and he lived at her address during the months of May, June and July until his arrest on July 19, yet he could recall if he was at his apartment on the two dates in May when P.C. Gagnon did his compliance checks.

87In my view the Crown has proven these two charges beyond a reasonable doubt. There will be a finding of guilt and conviction registered.

Offences from July 19, 2021

88There are two remaining charges from July 19, 2021, namely, unlawfully in a dwelling house and mischief under $5000. On July 19, 2021, the police were dispatched to an unknown trouble call in the area of Deputy Minister Path and Eaglesham Path. P.C. Gagnon responded and he went to 2671 Deputy Minister Path at 4:02 pm, as he had been at the address on two previous occasions (March 19 and June 1, 2021) dealing with Ms. Moreno and Mr. Ortiz-Picon. He had also been involved in the compliance checks at 10 Avenue of Champions Apt. 105 respecting Mr. Ortiz-Picon. He spoke to Ms. Moreno and after speaking to her, he left. She initially asked the police to check around her residence and then later became upset and denied them access. At some point she allowed the police to enter her home. P.C. Ng spoke to her and two other officers went to the back of the residence. P.C. Gagnon went upstairs and saw Mr. Ortiz-Picon standing at the top floor, the third floor. P.C. Gagnon arrested him as there were multiple outstanding warrants for his arrest and he was also on conditions to not have contact or be within a 100 metres of Ms. Moreno’s residence. Mr. Ortiz-Picon was arrested at 4:17 pm.

89At the top of the stairs Mr. Ortiz-Picon pulled away from the officer and caused damage to the wall. Exhibit 4 is a photograph of that damage to the wall at the top of the staircase. At the point where Mr. Ortiz-Picon pulled away P.C. Gagnon only had one hand holding his arm. He later took hold of Mr. Ortiz-Picon with both hands to better control him and he did not want him to fall down the stairs.

90In cross-examination P.C. Gagnon testified Mr. Ortiz-Picon pulled away from him and hit the wall with his right shoulder. Mr. Ortiz-Picon’s pulling away from the officer was intentional and P.C. Gagnon had to put him on the floor in order to handcuff him behind his back. Mr. Ortiz-Picon resisted arrest by putting his hands beneath his body as opposed to putting them behind his back as instructed. P.C. Gagnon testified he did not trust Mr. Ortiz-Picon not to try and pull away again. He wanted more physical control of him and this was why he held onto him with both hands and handcuffed Mr. Ortiz-Picon behind his back.

91P.C. Gagnon was not cross-examined by Mr. Kamel concerning Mr. Ortiz-Picon’s allegation of police brutality of being beaten up by three police officers during his arrest. Mr. Ortiz-Picon alleged the police pushed him into the wall and this is what caused the damage. The officer was not cross-examined concerning this allegation. P.C. Gagnon was not cross-examined concerning the racist comment alleged by Mr. Ortiz-Picon when P.C. Gagnon was placing him into the cruiser.

92I do not believe Mr. Ortiz-Picon’s evidence concerning the mischief charge. In my view the failure of Mr. Kamel to cross-examine the officer on Mr. Ortiz-Picon’s allegations raises Browne and Dunn issues. I was impressed with P.C. Gagnon’s evidence as being straightforward, forthright and responsive to the questions put to him. I accept P.C. Gagnon’s evidence as to how the damage to the wall occurred. It was an intentional act by Mr. Ortiz-Picon in trying to resist arrest and pulling away from the officer in a confined area at the top of the staircase leading to the third floor of this residence.

93Section 429 indicates “Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purpose of this Part, wilfully to have caused the occurrence of the event.”

94Section 430 indicates, “Every one commits mischief who wilfully (a) destroys or damages property.” This is the offence that Mr. Ortiz-Picon is charged with. It is my view the Crown has proven this offence beyond a reasonable doubt. There will be a finding of guilt and conviction registered.

95With respect to the unlawfully in a dwelling house, Mr. Ortiz-Picon was not permitted to be within 100 metres of Ms. Moreno’s home or to have contact with her. He was on three forms of release at this point in time. Ms. Moreno was in her home with her daughter and a female friend when she saw Mr. Ortiz-Picon inside her house. This was without her consent or agreement. She did not invite him and she was surprised to see him there. Mr. Ortiz-Picon testified he came to the house to retrieve some of his belongings that were there on Ms. Moreno’s invitation. It was his evidence he found a used condom in the bathroom, which he confronted her about. She had told him to go to the third floor and wait up there and he testified he said okay. He then decided to call the police, which he did but he learned the police were already there. It is my view Mr. Ortiz-Picon’s evidence does not make any logical sense, he had decided he wanted to get his belongings and leave, he found a used condom and confronted her, she then asked him to go to the third floor and he went. Then he testified he called 911 for the police to come but found out they were already there. For all of the reasons indicated earlier I do not accept Mr. Ortiz-Picon’s evidence and I reject it. It does not leave me with any reasonable doubt.

96Much of his evidence concerning July 19 was not put in cross-examination by Mr. Kamel to the officer or Ms. Moreno. These were not minor issues but rather went directly to the issues to be determined respecting the two remaining charges from July 19. His counsel conceded Counts 23 and 24, both breaches of his Release Order from July 19. I accept Ms. Moreno’s evidence that she did not invite him to her home on that date. In my view the evidence of P.C. Gagnon corroborates her evidence. Initially she did not have any difficulty with the police coming into her home but after they checked around her house for Mr. Ortiz-Picon her demeanour changed according to P.C. Gagnon and she did not want them to come in. She testified that Mr. Ortiz-Picon threatened her not to let the police come inside her house. I accept this evidence. She testified she cautioned the police about going upstairs as her daughter was sleeping. On all of the evidence I accept I find the Crown has proven the unlawfully in a dwelling house beyond a reasonable doubt. Under this section in the absence of contradictory evidence that is accepted someone is presumed to be there with the intent to commit an indictable offence. Mr. Ortiz-Picon was not to be at Ms. Moreno’s residence or to have contact with her. He knew of his conditions in his Release Orders and knew by being in that residence he was committing an indictable offence. I find him guilty of that offence and register a conviction.

Charge of Criminal Harassment

97The final remaining charge is Count 1, a charge of criminal harassment pursuant to s. 264(1), which reads: “between the 17th day of February in the year 2021 and the 19th day of July in the year 2021 at the City of Oshawa in the Central East Region did, without lawful authority and knowing that another person, namely Karla Canul, was harassed or recklessly as to whether that person was harassed, engage in criminally harassing behaviour towards that person and did thereby cause in all the circumstances Karla Canul to reasonably fear for their personal safety, contrary to section 264, subsection (1) of the Criminal Code of Canada.

98Section 264 of the Criminal Code reads as follows:

(1) “No person shall, without lawful authority and knowing that another person is harassed or is reckless 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.”

99In R. v. Sillipp (1997), 1997 ABCA 346, 120 C.C.C. (3d) 384 (Alta. C.A.); leave to appeal refused (1998), 228 N.R. 195 n (S.C.C.) cited with approval in R. v. Kohl (2009), 2009 ONCA 100, 94 O.R. (3d) 241(Ont. C.A.) and R. v. Krushel (2000), 142 C.C.C. (3d) 1, Berger J., for the court, set out the five essential elements of the offence of criminal harassment that the Crown must prove beyond a reasonable doubt (para. 18):

1. It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (d) of the Criminal Code.

2. It must be established that the complainant was harassed.

3. It must be established that 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. It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

5. It must be established that the complainant's fear was, in all of the circumstances, reasonable.

100The word "harassed" in section 264(1) of the Criminal Code has been defined as

…"tormented; troubled; worried continually or chronically plagued; bedeviled and badgered": R. v. Kosikar (1999) , 138 C.C.C. (3d) 217 (Ont. C.A.) at para. 25. Those words are to be considered individually, not cumulatively: R. v. Kordrostami (2000), 143 C.C.C. (3d) 488 (Ont. C.A.) at para. 10-11.

101In R. v. Ohenhen (2005), 200 C.C.C. (3d) 309 (Ont. C.A.) MacFarlane, J.A., in determining what constitutes “repeated communication” held as follows:

While one instance of unwanted conduct can be sufficient to satisfy s. 264(2) (c) and (b), it will not be sufficient to satisfy s. 264(2) (b). More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and should not be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs more than once, in my view, the actus reus can be made out. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and accused. It is in this context that a determination will be made as to whether there has been repeated communication. On the facts of this case, it was clear that neither the communications could be characterized as innocuous or accidental. In the context in which they were made, these two communications would be sufficient to constitute "repeatedly" communicating as set out in s. 264(2) (b).

102Finally, in R. v. Burns, 2008 ONCA 6, [2007] O.J. No. 5117 (C.A.), the Ontario Court of Appeal stated:

To establish harassment under s. 264(2) (d) of the Criminal Code, the Crown had to establish that the appellant engaged in "threatening conduct". We accept the definition of threatening conduct given in R. v. George (2002), 2002 YKCA 2, 162 C.C.C. (3d) 337 (Y.T.C.A.) at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a "tool of intimidation which is designed to instill a sense of fear in the recipient". The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regard to the effects those acts had on the recipient.

103Despite having rejected Mr. Ortiz-Picon’s evidence and it not leaving me with a reasonable doubt when I consider the totality of the evidence I do accept, which includes the evidence of Ms. Moreno, I do have a reasonable doubt respecting the final two essential elements referred to in the trilogy of cases cited above (Sillipp, Kohl and Krushel), namely,

4. It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

5. It must be established that the complainant's fear was, in all of the circumstances, reasonable

104My reasonable doubt relates to the photographs provided by the defence, Exhibits 11 and 12, which depict Ms. Moreno at Wasaga Beach in June 2021, with Estephany Barron (Exhibit 11) and Ms. Moreno sitting at a picnic table with Mr. Ortiz-Picon, Ms. Estephany Barron and her boyfriend, smiling and eating a meal outside a cabin in the Bruce Peninsula. Ms. Moreno was candid in her admission that she allowed Mr. Ortiz-Picon to live with her on several occasions, although she now is of the opinion this was a huge mistake on her part. Those two photographs cause me to be unable to be satisfied the Crown has met the onus of proof beyond a reasonable doubt. In his final submissions Mr. Hegedus conceded that while there may be times when Ms. Moreno got positive reinforcement from Mr. Ortiz-Picon because of his positive relationship with her daughter there was also some indicia that Ms. Moreno’s fear even though not permanent or all the time was reasonable. Although I am suspicious that there were probably occasions through the time period identified in Count 1 where Ms. Moreno was fearful for her safety that is not the test for proof beyond a reasonable doubt. In the totality of the circumstances present in this case I have a lingering doubt on this charge and as a result it is my view that this charge must be dismissed.

Released: October 31, 2022 Signed: Justice Peter C. West

[1] R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). [2] R. v. S. (W.D.), [1994] 3 S.C.R. 521. [3] R. v. W. (D.), at p. 409, per Cory J. [4] R. v. Avetsyan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J. [5] R. v. Hull, [2006] O.J. No 311 (C.A.), at para 5. [6] R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). [7] Browne and Dunn, (1893), 6 R. 87 (H.L. (Eng.)), at pp. 70-71. [8] R. v. Kienapple, [1974] S.C.J. No. 76 [9] R. v. Kordrostami, 143 C.C.C. (3d) 488, (Ont. C.A.). [10] R. v. Sabine (1990), 57, C.C.C. (3d) 209 at p. 212. [11] R. v. Simanek, [2003] O.J. No. 1112 (C.A.).