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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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

CITATION: R. v. Braithwaite, 2020 ONCA 513

DATE: 20200817

DOCKET: C68174

Roberts, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Scott Braithwaite

Appellant

Scott Braithwaite, acting in person

David Parry, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: August 11, 2020 by video conference

On appeal from the convictions entered on August 26, 2019 by Justice Richard LeDressay of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of breaking and entering, voyeurism, and criminal harassment of the complainant, with whom he had an intimate relationship. The complainant ended the relationship after two years and the appellant did not take the breakup well. The appellant sent the complainant so many emails and text messages that in November 2016, the complainant went to the police to complain about the unwanted contact. Thereafter, she began to receive emails and text messages from unknown addresses that she believed originated from the appellant.

[2] Around this time, in November 2016, the complainant discovered that the passwords to both her Apple ID and her Facebook page had been changed. She also received a notification that her Apple ID had been used to log on to a new device. She testified that in November and December, she noted many times on returning home that her garage light was on or her door was not locked. Additionally, someone set up fake (and derogatory) dating profiles in the complainant’s name on a dating website. Derogatory email and text messages about the complainant were sent to her employer. In January 2017, the principal of the complainant’s children’s school was sent photos of the complainant, along with allegations of misbehaviour on her part.

[3] On December 28, the complainant awoke to find her cell phone on the floor, rather than the bedside table where she had left it. The passcode had been changed. She found her front door unlocked and a key left on a table. She concluded that someone had been in her home while she was asleep.

[4] Two days later, she noticed a Ring camera on the floor in her bedroom, pointed at her bed.

[5] The police arrested the appellant and searched his cell phone incidental to arrest. A forensic search of the cell phone and his computer revealed several images that almost certainly originated from within the complainant’s residence. Some of the images were of documents kept in the complainant’s wallet, such as credit cards and a business card she received from the Halton Regional Police Service after making a complaint about the appellant. One image was of the complainant’s cordless phone, apparently displaying a call incoming at 12:01 A.M. on November 22. The time displayed on the phone matches the time and date of the image of the phone found on the appellant’s cell phone.

[6] The cell phone and computer extractions also revealed nude photographs of the complainant taken in her bedroom. Both the angle of the photographs and the Ring watermark suggest they were taken from the Ring camera the complainant discovered on her bedroom floor. The complainant testified that she had never shared nude photos of herself with the appellant.

[7] The extraction report also showed that on December 28, 2016 – the day which the complainant claimed someone had entered her residence and changed the passcode on her cell phone – the appellant’s cell phone received a notification that the complainant’s cell phone was now sharing its location with the appellant.

[8] Also located on the appellant’s cell phone were notes that the appellant had written recording his feelings about the complainant and the break-up, complaining of her treatment of him and wondering “is this some kind of sick game? Are you okay? Who treats people like this, who can me (sic) so morally corrupt and still not think they’ve done anything wrong??”

[9] The appellant was convicted of criminal harassment, voyeurism for a sexual purpose, and two counts of break and enter. He was sentenced to 12 months’ custody less 6 months’ credit for pre-sentence custody and time spent on restrictive bail.

Analysis

[10] The appellant advances three grounds of appeal against conviction: (1) the trial judge erred in finding that the appellant had animus towards the complainant, and this animus supported a finding that the appellant was the person who committed the acts of criminal harassment; (2) the trial judge failed to make a finding that the complainant was fearful of the appellant, which is a necessary element of criminal harassment; and (3) the trial judge erred by convicting the appellant on circumstantial evidence when the evidence was open to reasonable inferences other than the appellant’s guilt: R. v. Villaroman, 2016 SCC 33, at para. 35.

[11] With respect to the argument concerning animus, there is ample evidence from which the trial judge was able to draw the inference that the appellant had animus towards the complainant. In particular, the notes that were recovered from his devices did not simply record his sorrow and self-pity. Some, at least, were directed at the complainant and were accusatory in nature, suggesting not only that he was a victim of her unjust treatment, but that she was both morally and psychologically disordered.

[12] With respect to the second ground of appeal, it is true that the trial judge did not make an explicit finding that the complainant was fearful of the appellant. She may not have been fearful during the initial period in which the appellant was continually messaging her. However, the record clearly establishes that she was fearful after discovering the Ring camera. The words she used to describe her reaction were “shocked”, “petrified”, “anxious”, “upset”, and “violated”. This was before she learned of the nude photographs of herself on the appellant’s devices.

[13] Finally, the appellant argued that as the evidence was circumstantial in nature, and there were other explanations for the evidence equally consistent with the guilt of the appellant, he ought to have been acquitted. In his oral submissions, he pressed that it was much more likely that the complainant had fabricated the evidence – including the apparently surreptitious nude photographs in the bedroom – that was downloaded to his devices without his knowledge.

[14] We do not agree that the trial judge made any error. The circumstantial evidence against the appellant was overwhelming. Neither was there an evidentiary gap that could have left the trial judge with a reasonable doubt. In these circumstances, it was open to the trial judge to conclude that the only reasonable inference available was the appellant’s guilt.

[15] The appellant’s strongest argument on the evidence is that some of the images found on his devices pre-date the two specific dates of the two counts of break and enter for which he was convicted. There is nothing to this. The information covers a period of time from October 1, 2016 for the voyeurism offences, and November 2, 2016 for other offences. They are not tied to the dates particularized for the two counts of breaking and entering. The two counts of breaking and entering do not preclude the drawing of the inference that the appellant had been unlawfully present in the complainant’s residence on other occasions, which inference is also supported by the evidence at trial.

DISPOSITION

[16] The appeal is dismissed.

“L.B. Roberts J.A.”

“B.W. Miller J.A.”

“Gary Trotter J.A.”