WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) 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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2019-01-14

Docket: C65460

Judges: MacPherson, Roberts and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Cody Boast Appellant

Counsel:

• Ian Carter, for the appellant
• E. Nicole Rivers, for the respondent

Heard: January 10, 2019

On appeal from the convictions entered by Justice Catherine D. Aitken of the Superior Court of Justice on December 21, 2017.

Reasons for Decision

[1] Charges and Sentence

The appellant was convicted of repeatedly communicating by way of telecommunication with intent to harass contrary to s. 372(4) of the Criminal Code, breach of recognizance, and breach of probation. He received a sentence of 20 months' imprisonment.

[2] Grounds of Appeal

The appellant appeals the convictions. His principal submission is that the conviction for the communicating offence is unreasonable. Hence the appeal should be allowed, the conviction set aside, and an acquittal entered.

[3] Facts: The Bar Encounter

On Saturday, January 30, 2016, four Carleton University students, including the complainant, L.M., and her friend, S.C., went to a bar in Gatineau called Mardi Gras. While at Mardi Gras, L.M. spoke to S.C. about her interest in another student, Brandon, who was also at Mardi Gras. According to S.C., a man whom she identified at trial as the appellant overheard the conversation and offered to assist in hooking L.M. up with Brandon. The man introduced himself to S.C. as "Cody". S.C. and "Cody" chatted briefly.

[4] Exchange of Contact Information

At some point, "Cody" chatted with L.M. During this conversation, "Cody" and L.M. discussed how they would work out at the Carleton University gym and how L.M. liked to do squats. They agreed to work out together at the gym at some point. They also exchanged cell phone numbers.

[5] Evening at Multiple Venues

L.M. spent most of the time at Mardi Gras dancing with Brandon, while "Cody" danced with her friend Lindsay. After about an hour at Mardi Gras, L.M., Brandon, "Cody", Lindsay and S.C. went to another bar, Le Pub. S.C. stayed at Le Pub until closing time. At approximately midnight, L.M., Brandon, "Cody" and Lindsay decided to go to the Gatineau casino. Prior to leaving, "Cody" made a comment to L.M. that she could either go home with Brandon or with him.

[6] Return to Appellant's Residence

"Cody" drove everyone to the casino. The couples (Brandon and L.M. and "Cody" and Lindsay) separated at the casino but met up less than an hour later to go home. "Cody" drove everyone back to his place. Brandon and L.M. stayed there for approximately ten minutes then went home.

[7] Harassing Messages Begin

At some point the next day, Sunday, January 31, 2016, L.M. began receiving text messages from the cell phone number she had assigned to "Cody" in her cell phone. "Cody" referred to L.M. as "squat girl", discussed working out with her in the future, mentioned that he was hungover, and asked her if she had fun with Brandon the other night. "Cody" also made suggestive remarks and attempted to arrange a meeting with L.M. Eventually the conversation took a negative turn and "Cody" started sending aggressive, insulting, and belittling messages to L.M.

[8] Escalation of Harassment

Upset, L.M. showed the messages to S.C. S.C. then began exchanging messages with "Cody". The messages sent by "Cody" continued to be aggressive, insulting, and belittling. Later, L.M. and S.C. received insulting and belittling messages from an email address they did not recognize.

[9] Police Report and Charges

On Tuesday, February 2, 2016, L.M. and S.C. met with Carleton University security. They then contacted the police to report the messages. The appellant was arrested and charged with repeatedly communicating with L.M. by means of telecommunication, with intent to harass L.M., contrary to s. 372(4) of the Criminal Code. He was also charged with breaching two probation orders and one recognizance applying to him at the time.

[10] Trial Issue: Identification

The key issue at trial was identification: was the appellant, Cody Boast, the "Cody" who met the complainant and then, a day later, sent her harassing messages?

[11] Appeal Issue: Identification

The landscape on this appeal is the same. The sole issue is identification. The appellant submits that the testimony of the complainant and her friend S.C. was insufficient to conclusively establish that the appellant was the person who sent the harassing messages to the complainant, either directly or through S.C.

[12] Court's Analysis: Recognition Evidence

We do not accept this submission. In our view, the trial judge's analysis of, and conclusion about, the identification evidence were error-free. The trial judge properly considered the complainant's evidence to be recognition evidence. Her identification of the appellant was unquestionably based on their prior acquaintance. The evidence established that the complainant and the appellant were together for several hours on the night of January 30-31, 2016. Although they had never met before, by the end of the evening they had been in close proximity for several hours in two or three bars and casinos, outside when the appellant suggested to the complainant that she could go home with him or Brandon in the appellant's car, and in his home. They had also exchanged cell phone numbers and agreed to meet again at a university gymnasium.

[13] Description to Police

Moreover, the trial judge's approach to the complainant's description to police contained no error. It was a detailed and accurate description.

[14] Out-of-Court Internet Identification

Similarly, the trial judge did not err in relying on the complainant's out-of-court Internet identification. Both this identification and the complainant's in-court identification of the appellant were, at bottom, anchored in the lengthy contact, in close quarters and across several locations, between the complainant and the appellant.

[15] Trial Judge's Conclusion

In the end, the complainant's identification of the appellant was not based on a fleeting glance at a person in a stressful situation (the context for many identifications in criminal trials). It was not an identification of a stranger. The trial judge said:

I am satisfied that, after the interactions with Cody on Saturday night and early Sunday morning, both [the appellant] and [S.C.] had a clear image of him. I am satisfied beyond a reasonable doubt that Cody Boast is the Cody whom [S.C.] and [the appellant] met at Mardi Gras on January 30, 2016. I am also satisfied beyond a reasonable doubt that 613-240-7551 was the cell phone number that Mr. Boast gave [the appellant] on January 30, 2016 so that she could contact him from her cell phone number.

[16] No Basis for Interference

We can see no basis for interfering with this analysis and conclusion.

[17] Disposition

The appeal is dismissed.

J.C. MacPherson J.A.

L.B. Roberts J.A.

David M. Paciocco J.A.