The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:
486.4 (2.1) Victim under 18 - Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
ONTARIO COURT OF JUSTICE
DATE: 2023 12 18 COURT FILE: Toronto #23 70000683
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEMAR CLARKE
JUDGMENT
Before: Justice Brock Jones
Heard on: December 11, 12, 14, and 15, 2023 Reasons for Judgment Provided on: December 18, 2023
Counsel: L. Stokes............................................................................................... counsel for the Crown T. Okada-Phillips................................................................................. counsel for Mr. Clarke
Introduction
1Kemar Clarke is charged with one count of criminal harassment by “repeatedly following” the complainant, M.R., from place to place causing her to fear for her safety contrary to Criminal Code section 264(2)(a). He is also charged with breaching the term of a probation order by failing to “keep the peace and be of good behaviour” contrary to Criminal Code section 733.1.
2The Crown proceeded summarily.
Overview of the Crown’s Case
3Ms. M.R. was a 17-year-old student at Monarch Park Collegiate in Toronto on January 20, 2023. That morning she walked to school by herself. Her first class began just after 9 a.m.
4She was near a Starbucks at the intersection of Danforth Avenue and Monarch Park Ave. when a man approached her. She had never seen him before. She had earbuds in and was listening to music. He said something to her but she could not hear him at first.
5She removed her earbuds and he said, “Yo Ma can I get a piece?” She said, “What?” The man replied, “…of your pussy.” She said, “No”, and walked away from him. He was very close to her when he made these remarks. She was shocked and felt uncomfortable.
6She crossed the street and began to walk south on Monarch Park Ave. The man followed her. He offered her $4000 to have sex with him. He was still very close to her. She estimated the distance at two feet. He may have made this proposition to her four times. She knew it was more than once.
7She said, “No. Stop following me.” There was no one else in the immediate area. She was afraid to go to school as he would know where she went to school, but she was also afraid for similar reasons to go home.
8Eventually, she crossed the street from one side of Monarch Park Ave to the other, when she was nearing her school. She remembered the man saying, “Baby, baby”. He remained only a few meters away from her until she crossed the street.
9She arrived at Hanson St. and walked closer to her school. She looked back and the man was still following her. There were students out front of her school and when she arrived she yelled out, “Stop following me!” The man continued to walk past her. She went straight into the school through the front doors and told a hall monitor what happened. The entire incident lasted about seven minutes.
10Ms. A. Visalli was working that day at Monarch Park Collegiate as a safety monitor. She recalled seeing a strange man, whom she considered to be an intruder, arrive in the lobby area of the school around 9:10 a.m. The man tried to pass her in the foyer and she told him he could not enter the school. She saw him leave and walk west down Hanson St. She too had never seen this man before.
11PC Niezen was on duty at Monarch Park Collegiate that day for another, unrelated matter. He was informed of what happened with a strange man harassing a student. He received information about this man’s description and began to search for him. He found a man matching that description at the intersection of Felstead and Gillard Ave. [1] and arrested him. That man was identified as Kemar Clarke.
12PC Niezen’s body-worn camera was operating and the video footage of his arrest of Mr. Clarke was made an exhibit.
13PC Irwin testified that he arrested Mr. Clarke on August 19, 2021, for a different charge. The Crown filed a copy of an exemplified information and probation order without objection. The Crown alleges Mr. Clarke was bound by that probation order. PC Irwin was called to provide evidence that the Kemar Clarke in court before me is the same Kemar Clarke named on this prior information and probation order.
Position of the Parties
Crown
14Mr. Stokes submits that the Crown has proven that Mr. Clarke was the suspect who followed M.R. and that the essential elements of criminal harassment have been proven.
15He asked me to accept the testimony of M.R. and Ms. Visalli. Each witness had the opportunity to make observations of the suspect which were reliable. While there were some differences between their observations of the suspect and the known appearance of Mr. Clarke when he was arrested, they are minor. Overall, the witnesses’ descriptions are remarkably consistent with Mr. Clarke’s appearance. Mr. Stokes further argued that there were distinctive and unique features of the suspect’s clothing, such as the blue shorts he was wearing on top of black pants, and his red shoes, both of which were noticed by Ms. Visalli. Those unique features bolster the Crown’s position that Mr. Clarke, who was located with this type of clothing, was the suspect.
16If I conclude that the suspect was Mr. Clarke, the conduct he engaged in constitutes criminal harassment. He followed a teen girl on her way to school, verbally accosted her with sexual remarks, and reasonably caused her to fear for her safety.
17He was bound by a probation order and was not “keeping the peace” by this conduct.
Defence
18Mr. Okada-Philipps cautions me on the frailties of eyewitness identification evidence. The witnesses may have been credible but that does not translate into them having provided reliable evidence. Certain distinguishing features of Mr. Clarke’s clothing were not mentioned by M.R. at all, including the blue shorts he was wearing on top of his black pants, and the white writing on the side of the pants. The mask Mr. Clarke was wearing was not entered into evidence as an exhibit, and PC Niezen described it as white (not green). These discrepancies between M.R.’s description of the suspect and Mr. Clarke’s appearance upon his arrest should raise a reasonable doubt.
19Even if I conclude the suspect was Mr. Clarke, the conduct M.R. complained of does not constitute criminal harassment by “repeatedly following from place to place.” This was one continuous chain of events and I should be left with a reasonable doubt that the “repeatedly following” element has been met. I should also be left with doubt that the suspect knew he was harassing M.R., even if she did feel harassed.
20Regarding the fail to comply with a probation order count, he submitted that there is insufficient evidence that the “Kemar Clarke” on the probation order is the same Mr. Clarke before me for trial. Even if I disagree, there is no evidence that Mr. Clarke knew this order bound him. The probation order was not signed by the accused. A fundamental requirement for proving a failure to comply with a probation order charge is that the person bound by that order knew he had to follow its conditions. The Crown called no evidence in that regard to prove subjective mens rea: see R. v. Zora, 2020 SCC 14, at para. 109.
Law and Analysis
21Mr. Clarke is presumed innocent. The Crown must prove the essential elements of both offences beyond a reasonable doubt.
22M.R. impressed me with her testimony. She was articulate and answered questions directly. She provided detailed, cogent answers. She admitted that she could not remember everything that happened to her with precision. She agreed with suggestions put to her by defence counsel when she felt they were fair. Despite her young age, she presented as a mature woman who was honestly and accurately recounting the events that occurred on January 20, 2023. I found her to be a highly credible witness and I accept her testimony.
23However, some aspects of her evidence were not as reliable as others, as I will explain, because of the nature and circumstances of her interactions with the suspect. The reliability of her testimony must be carefully analyzed before I can determine how much weight I can place on it.
24The testimony of PCs Niezen and Irwin was not seriously in dispute. I accept their evidence. PC Niezen’s body-worn camera footage was entered as an exhibit which recorded his interactions with Mr. Clarke, although the audio was not played in court. I therefore reviewed that exhibit solely for the probative value of the visual representations of Mr. Clarke on the day of his arrest for these charges.
25Ms. Visalli was also a credible witness who was not seriously challenged in cross-examination. She provided a very detailed description of the man she labelled an intruder at her school. She was able to view him clearly when they were close to one another for over a minute. Her testimony of this man’s appearance and clothing was reliable. She was concerned about his presence at the school and paid close attention to him. I accept her testimony.
26There are four primary issues in this case:
(1) Did the suspect’s conduct amount to criminal harassment?;
(2) Has the Crown proven the suspect was Mr. Clarke?;
(3) Has the Crown proven Mr. Clarke is the same person named in the prior information and probation order?; and
(4) If the answer to (3) is yes, does the fact that the prior probation order was never signed by Mr. Clarke raise a reasonable doubt that he knew he was bound by the conditions within it?
Criminal Harassment
27The Crown must prove the following elements to secure a conviction under Criminal Code section 264(2)(a):
(1) the suspect engaged in conduct described in section 264(2)(a) – that is, he repeatedly followed M.R. from place to place;
(2) M.R. was harassed;
(3) The suspect knew that M. R. was harassed or was reckless or wilfully blind as to whether she was harassed;
(4) The suspect’s conduct caused M. R. to fear for her safety; and
(5) M.R.’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.
28Harassment includes the complainant being “tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered”: see Kosikar, supra.
29Fear for one’s safety can include psychological harm or emotional distress: see R. v. Szostak, 2012 ONCA 503, at para. 31.
30In R. v. Kohl, 2009 ONCA 100, the Ontario Court of Appeal held that in some circumstances, even a single incident may be sufficient to establish the offence of criminal harassment. In that case, the appellant, a stranger to the victim, jumped out from behind some bushes and confronted her when she was jogging. He blocked her way and frightened her. He chased her down the street as she attempted to escape. The Court of Appeal dismissed the appeal against conviction.
31However, the appellant in Kohl was charged with committing the offence by way of threatening conduct. Mr. Clarke is charged with “repeatedly” following M.R. Mr. Okada-Phillips argued that the conduct in this case does not establish that the suspect “repeatedly” followed M.R. from place to place. He relied upon R. v. Ohenhen, at para. 32. He characterizes the suspect’s conduct as essentially following M.R. from one place to another, over seven minutes. That is one continuous transaction of unwanted conduct and therefore cannot rise to the “repeated” requirement located in section 264(2)(a) of the Criminal Code.
32In Ohenhen the Court of Appeal held that “repeatedly” should be equated with “persistently.” The Court of Appeal rejected the proposition that “repeatedly” must always require proof of entirely distinct conduct that is separated by a particular period of time: see paras. 22-25. Whether or not the conduct was done “repeatedly” is a question of fact. There is no requirement for any minimum number of instances of unwanted conduct beyond establishing that more than one such event occurred: see para. 31.
33In this case, M.R. was walking to her school on public streets. She was approached by an older, larger man who was a stranger to her. She was essentially alone, with no one else near her to come to her aid. He made vulgar sexual remarks to her that constituted propositioning her for sex. He came very close to her physically. She told him “No.”
34She walked away from him, but he followed her, continuing with his sexual remarks. He asked her more than once if she would have sex with him for $4000. She walked across the street at one point to try and create some distance between her and the man. She told him, “Stop following me.”
35The total distance he followed her amounted to several blocks. When she finally got to her school grounds, she yelled loudly for him to leave her alone, hoping it would draw the attention of someone to help her. She testified she was afraid for her safety, and afraid he would know where she went to school.
36The suspect then followed her into her school where he was told to leave by Ms. Visalli.
37I am satisfied the conduct of the suspect amounts to criminal harassment by “repeatedly” following her in these circumstances and making these sexual and provocative remarks. A single instance would have been the first sexual remark made to her near the Starbucks when their interactions began. After that occurred, and he was told “No”, the suspect continued to follow her at a very close distance. That is a second instance of conduct. I find that the suspect heard M.R. tell him to stop following her when he propositioned her for sex multiple times. I find that he heard her tell him to leave her alone when she was walking along Monarch Park Ave. to her school and that he heard her yell to leave her alone when she was on the school grounds. Yet he followed her into the school regardless of where Ms. Visalli stopped him. That is yet more unwanted conduct that constitutes following.
38M.R. testified she was afraid and I am satisfied that fear was objectively reasonable. She was a teenage girl being accosted by a male stranger in the early morning hours while she was vulnerable and alone. The remarks the suspect made to her were disgusting and abhorrent. Women should not have to fear for their very personal safety and bodily integrity when going about their daily lives in this city. For a young woman, not even an adult, to have experienced this, would have understandably caused her to fear for her safety.
39The suspect was also told “No” or “Leave me alone” multiple times by M.R. yet persisted in his conduct. He knew or was reckless or wilfully blind to the fact he was harassing M.R.
40The suspect committed the offence of criminal harassment.
Identity
41PC Niezen’s body-worn camera footage provides crystal-clear footage of what Mr. Clarke looked like on the day of the incident. However, he did not witness any of the harassment. Therefore, the case for the Crown turns almost entirely on the eyewitness description evidence of M.R. and Ms. Visalli. The question before me is whether I am satisfied beyond a reasonable doubt that Mr. Clarke was the suspect who followed M.R. Mr. Stokes submits I can compare the known images of Mr. Clarke contained on this footage to the witness’ descriptions of the suspect and conclude they are the same person.
42In R. v. M.B., 2017 ONCA 653, Justice Juriansz made the following remarks about eye-witness identification evidence at para. 29:
Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person.
43In R. v. Pelletier, 2012 ONCA 566, the Ontario Court of Appeal held that the weight to be assigned to evidence of eyewitnesses is for the trier of fact to determine and will vary according to the circumstances of individual cases: see para. 91.
44In R. v. Dosanjh, 2022 ONCA 689, the Court of Appeal explained the difference between eye-witness identification and description evidence. The first is an opinion that the accused is the person who committed the offence, while the second is simply evidence describing a characteristic or characteristics of a perpetrator.
45The Court held that both forms of eye-witness testimony raise reliability concerns “that demand the cautionary instruction typically required in the case of identification evidence”: see para. 34. Where the Crown is relying upon description evidence to identify the accused as the perpetrator, it remains necessary for the trial judge to consider the settled law respecting the frailties of eye-witness evidence.
46M.R. had a clear view of the suspect. It was the morning, and she saw him on a public street with few other people around. He was wearing a mask, but he was very close to her and she could see him without any obstructions. While she could not see all of his face, she could otherwise make observations of his appearance and clothing.
47He was a black male. He was taller than M.R., who is approximately 5’9” tall. He was wearing a face mask that was green or light green. It was the type of mask that people commonly wore that was given out at hospitals and was normally light blue with white strings. [2] She could tell he had messy dark brown hair or possibly black hair. [3] He had black track pants. He wore a puffy coat. He told her his age was in his 20s or 30s, which is consistent with Mr. Clarke’s true age. PC Niezen located him a short distance from her school, near the intersection of Felstead and Gillard Avenue, at approximately 9:17 am. This was approximately seven minutes after he attended the school for an unrelated matter and received the suspect’s description.
48Yet M.R. admitted when testifying that the image in her head of the suspect was not clear and the only feature of his appearance that day she was “100% certain” about was the fact he was wearing a mask. This incident happened nearly a year ago. She was frightened at the time. The man followed her for about seven minutes until she arrived at school. During that time she was not fixated on his appearance. Rather, she was trying her best to avoid him and find somewhere where she would feel safe.
49This was a very smart decision by M.R. Her priority was and should have been, her safety. She did her best to ignore the man, and not agitate him. She wisely made her way to school as quickly as possible to find other people who could protect her.
50Nevertheless, she did not have the opportunity to make lengthy observations of the suspect and was uncertain about some of his features. This diminishes the reliability of portions of her description evidence. For example, she stated the man was a “little bit taller” than her height, and she estimated the suspect was approximately 5’11”. In cross-examination, she agreed with a suggestion put to her that his height could have ranged from 5’9 to 6’0. PC Niezen testified that Mr. Clarke was between 6’0 and 6’3”.
51M.R. described the man as being “skinny”. She estimated his weight was between 135 and 160 lbs, although she was not confident of assigning a number when asked to do so.
52During her testimony in chief, initially, M.R. was not sure if the man was wearing a hat. Mr. Stokes played a prior statement she gave to an officer recorded on body-worn camera footage shortly after the incident which she reviewed to refresh her memory. Upon reviewing the prior statement, she remembered that the man was wearing a black hat which she described as a “beanie.” This type of hat was like a toque, but more fitted.
53She remembered he had some red clothing but could not be certain if it was his jacket or his shoes. She was asked about the jacket he was wearing, and responded that it was puffy, and it might have been navy blue or black. This stood in contrast to her earlier statement that the jacket might have been red. She quickly corrected herself and stated that those colours might better describe his pants. She further described the pants he was wearing as “baggy to slim”, but not very tight.
54These uncertainties in her memory of the suspect’s description require me to approach her evidence with great caution. While she was a very credible witness, she was not very reliable regarding certain features of the suspect’s appearance. This man was a stranger to her, and eye-witness identification evidence of a stranger, as previously discussed, is often fraught with peril. Establishing the credibility of an eyewitness is not sufficient to rely on their evidence as fact.
55Mr. Clarke bore a resemblance to the suspect as described by M.R. in many respects. A resemblance, by itself, is an insufficient basis however upon which a court can conclude that the accused was the person who committed the offence: see R. v. Boucher et al at para. 19. Evidence of a resemblance, between a suspect and the accused, does provide some probative value on the issue of identity. Where the Crown can produce some other evidence of identification, the “combined force of evidence of a resemblance and other inculpatory evidence” may permit the Crown to meet its burden: see R. v. Rybak, 2008 ONCA 354, at para. 121.
56I conclude that the discrepancies in M.R.’s description of the suspect and Mr. Clarke’s appearance as recorded on PC Niezen’s body-worn camera footage are minor, with one notable exception.
57She knew he was taller than her. The most reliable evidence of Mr. Clark’s height came from Exhibit 2. This was the booking video of Mr. Clarke at the police division following his arrest. He stands adjacent to PC Niezen, who testified he was 5’7” tall. [4] Mr. Clarke appears to be several inches taller than him, but no more than about 6’ tall. M.R.’s rough assessment of the suspect’s height is not inconsistent with Mr. Clarke’s height.
58She remembered the suspect had red clothing – either shoes or a jacket – and Mr. Clarke was wearing red shoes. She later clarified in her testimony the jacket’s description (puffy) and colour (navy blue or black) which are consistent with the jacket Mr. Clarke was wearing. She did not remember seeing white writing on the suspect’s pants but otherwise, her description aligned with Mr. Clarke’s pants, such as they were black and “not very tight.”
59Her description of the suspect’s hat as a black “beanie” is consistent with the hat located on Mr. Clarke’s head. I accept her testimony about the nature of this hat, and do not find that her memory had to be refreshed on this point affects the weight I may place on this aspect of her testimony.
60However, I agree with Mr. Okada-Philipps that the blue shorts on top of Mr. Clarke’s pants were quite visible. M.R. did not mention those at any point in her testimony. That is a discrepancy that by itself could raise a reasonable doubt that Mr. Clarke was the suspect. It is a unique feature of Mr. Clarke’s appearance that day one would expect M.R. to have noticed if the suspect was Mr. Clarke.
61That being said, every other aspect of her description lined up with Mr. Clarke’s appearance including the suspect’s skin colour, gender, age, hair, and the rest of the features of his clothing. My review of PC Niezen’s body-cam footage is that the face mask is a light green colour. PC Niezen’s description of the mask as “white” was his subjective view. It is a very light green. This was also something somewhat unique that he had across his face as she described.
62Importantly, the suspect was located a short distance from her school minutes after she last observed him following her.
63During cross-examination Mr. Okada-Philipps had M.R. agree that she tried to avoid looking at the suspect for most of the time he was harassing her. However, she was able to see his face when he was very close to her, even if this was only for a few seconds. She also had multiple opportunities to see him walking as she tried to leave his presence.
64I also agree that this was a stressful experience for M.R. That too is an important factor to consider when weighing the reliability of her identification evidence. Yet her testimony was accurate in those areas she remembered well.
65Ms. Visalli testified that at approximately 9:10 am an adult male intruder entered the foyer of Monarch Park Collegiate. He was a black man, at least 5’10” tall, wearing a black jacket, a black hoodie with the hood up, black pants with blue shorts on top of them, and red shoes. He was wearing a face mask. She was able to watch him when he was no more than a foot away from her for at least one minute.
66After interacting with the intruder, she saw him walk westbound along Hanson St. past Monarch Park and heading towards Gillard St.
67I conclude the intruder was the same man who had followed M.R. to school. The man matched the description provided by M.R. The substantial discrepancies between the two witnesses’ descriptions were that the colour of the face mask was described by Ms. Visalli as black, as opposed to green, and that M.R. did not mention the blue shorts on top of the suspect’s black pants. Additionally, Mr. Clarke was not wearing a hoodie as Ms. Visalli testified the intruder was, but his jacket was black and his hat was black. Ms. Visalli may have confused this clothing for a hoodie with the hood up. That element of her description evidence must be considered as a discrepancy as well.
68Yet those discrepancies do not overcome the great many similarities in their descriptions of the suspect. Eyewitnesses will understandably not remember every detail of a stranger’s appearance when attempting to recount from memory that person’s description when testifying a year later. I must consider the totality of the evidence to determine if the Crown has met its burden. Furthermore, I do not find it plausible that another strange man, of a similar appearance, just happened to be in the school foyer at the same time as the man who followed M.R. that day. It was the same person.
69Fundamentally, the Crown’s case on identification rests on circumstantial evidence. 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. 30-34. 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.
70Considering both M.R. and Ms. Visalli’s descriptions of the suspect, and comparing those descriptions to the body-worn camera footage of PC Niezen, I am satisfied beyond a reasonable doubt that Mr. Clarke was the man who followed M.R. After he reached Monarch Park Collegiate, Ms. Visalli saw him and confronted him inside the school. He was trying to continue his pursuit but was thwarted by her presence. When he left the school, she saw him head in the direction of the intersection where PC Niezen located him. It defies belief that another male person of Mr. Clarke’s age, racial background, approximate height, and wearing the same type of distinctive clothing was located in this area at the same time. Indeed, on the officer’s body-worn camera footage, there are glimpses of just two other people that can be seen near Mr. Clarke shortly before he was detained. Neither one matched the description of the suspect.
71I have considered the alternative possibilities suggested by Mr. Okada-Philipps pursuant to the test in Villaroman and do not find they are reasonable. The only conclusion to draw is that the same man harassed M.R., entered the school, and was arrested by PC Niezen.
72That man was Mr. Clarke. He is found guilty of criminal harassment.
Failing To Comply With Probation
73The next issue to be decided is whether I am satisfied that Mr. Clarke is the “Kemar Clarke” named in the probation order entered as Exhibit 3.
74He was arrested for sexual assault and assault on August 19, 2021, on a complainant, named T.G. PC Irwin testified he arrested Kemar Clarke (that is, the man on trial in the courtroom) for that offence. The charge and T.G.’s name appear on the original information #21-55002400 attached to the probation order contained in Exhibit 3. That information also contained a variety of other charges. The probation order also contained the same information number and indicates he was sentenced for some of the offences located on that information. The name “Kemar Clarke” also appears on these documents. His date of birth on the information is February 2, 1992. However, the date birth on the probation order is different: February 2, 1997.
75Mr. Clarke’s name and date of birth of February 2, 1992, are also contained in the information charging him with the offences currently before the court.
76A court can take judicial notice of its own records and process: see R. v. Evaglok, 2010 NWTSC 35, at paras. 20-30, affirmed 2010 NWTCA 12. See also R. v. Suleimanov, 2016 ONSC 5778.
77PC Irwin’s testimony provides direct evidence that Mr. Clarke was the person named in the prior information and probation order. While the probation order contains a different year for the offender’s date of birth, it was attached to the information and reflects that he was sentenced for some charges contained in the prior information with an offence date of August 19, 2021. I find the year 1997 for the date of birth was a typographical error.
78Moreover, I am satisfied beyond a reasonable doubt that the name and date of birth on the information for the charges before the court is circumstantial evidence upon which I can conclude that Mr. Clarke is the named person in the prior information and probation order contained in Exhibit 3. Those names and dates of birth match each other (subject to the typographical error previously identified). He was arraigned on this information and responded to it by pleading not guilty at the commencement of the trial: see R. v. Thomas, 2018 ONSC 102, at para. 27.
79I conclude that the Kemar Clarke on trial before me is the same Kemar Clarke that was subject to the probation order contained in Exhibit 3. That probation order was issued on February 1, 2022, and was in place for two years. It was in force on January 20, 2023.
80A term of that probation order required him to “keep the peace and be of good behaviour.” The conduct of harassing M.R. on the street repeatedly despite being told to leave her alone absolutely violated this term.
81Concerning the argument that the Crown did not prove the mental element for this offence, I rely upon R. v. Scott, 1980 ABCA 299. In that case, the accused was charged with breach of probation. The central issue at trial focused on whether the Crown had to call evidence that the judge who imposed the probation order complied with the statutory requirements in the Code, including that he informed the accused of the provisions and the consequences of failing to comply. Prowse J.A. held that the presumption of regularity in criminal proceedings could be applied except for elements establishing the gravamen of the offence. At p. 114 of the decision the Court wrote:
To purport to establish the guilt of an accused solely or largely by reliance on such a presumption would amount to a fundamental contradiction of the principles upon which our system of criminal law is based. This is not to say, however, that the presumption has no application. The gravamen of an offence, that is the fact that the acts comprising the offence were done by the accused, with whatever mental element may be required by the definition of the offence under consideration, must be proved by direct evidence. At that point, an examination of Wigmore’s conditions quoted will at times demonstrate the appropriateness of applying the presumption of regularity to establish elements of the offence which, while technically essential to the charge, are not central to the issue of whether the gravamen of the offence has been established. The due appointment of officials, and compliance by officials with their statutory duties, come to mind as areas potentially receptive to the application of the presumption. [5]
82Prowse J.A. concluded that the presumption applied with respect to a sentencing court’s statutory duty to inform the accused of the terms of the order and the consequences of breaching that order. Under the modern version of the Criminal Code, section 732.1(5)(b) creates such an obligation.
83While the probation order in Scott was signed and the probation order in this case was not, I do not find that fact prevents the application of the presumption. An offender may refuse to sign a probation order but that does not invalidate it. An offender may also not personally sign the order because, as the Ontario Court of Justice has embraced virtual appearances, the offender is not physically in the courthouse when the order was issued. That is not a basis upon which to forgo reliance on the presumption of judicial regularity. There was no evidence called to the contrary for me to consider.
84I am satisfied beyond a reasonable doubt that Mr. Clarke knew the terms he was bound by on this probation order and through his conduct breached the term that he “keep the peace and be of good behaviour.”
85He is found guilty of count 2.
Released: December 18, 2023 Signed: Justice Brock Jones
Footnotes
1Hanson St. turns into Felstead Ave. after the intersection of Parkmount Rd.
2I am willing to take judicial notice that surgical masks continued to be worn by large numbers of the population due to COVID-19 in January of this year. They have become very common since the onset of the pandemic. Most are blue, as the witness described.
3In cross-examination Mr. Okada-Phillips suggested to the witness the man’s hair was black, even though she did not use that colour to describe it in chief. She said yes in response to this question. Following her response the Crown made an objection. She later clarified her answer.
400:51 on the counter.
5My emphasis added.