Publication Restriction 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
DATE: 20210205 DOCKET: C65101
van Rensburg, Benotto and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Pierre Labelle Appellant
Counsel: Michael W. Lacy and Bryan Badali, for the appellant Eric W. Taylor, for the respondent
Heard: December 2, 2020 by video conference
On appeal from the conviction entered on June 13, 2017 by Justice David A. Thomas of the Ontario Court of Justice.
van Rensburg J.A.:
A. Overview
[1] In April 2015, the Greater Sudbury Police Service received complaints from six women over an approximate 48-hour period stating that a man in a vehicle had followed them, or accosted them, ensuring they saw him masturbate or asking them to watch him doing so. The appellant was convicted of a number of offences in relation to the events that were alleged to have occurred between April 28 and 30, 2015: two counts of performing an indecent act (Criminal Code, R.S.C. 1985, c. C-46, s. 173(1)), two counts of criminal harassment (s. 264(1)), and two counts of communicating with a person for the purpose of obtaining sexual services from a person under the age of 18 (s. 286.1(2)).
[2] The primary issue at trial was the identity of the person who committed the various acts. All of the complainants provided descriptions of the assailant; there was evidence from only one complainant identifying the appellant in a photo line‑up and in court. The trial judge granted the Crown’s similar fact evidence application, permitting the use of the evidence of the complainants across counts, and excluding evidence of an off-indictment event.
[3] The appellant appeals his convictions. He seeks an acquittal in respect of one of the criminal harassment charges and a new trial on the remaining counts. The appellant argues that: (1) the trial judge erred in his treatment of the “non-identification” evidence of two complainants, E.S. and C.L., which had a bearing on all of the convictions; (2) the verdict of guilt on the charge of criminal harassment against J.V. was unreasonable because the essential elements of the offence were not made out; and (3) the trial judge improperly used his finding that the appellant was willing to fabricate evidence as positive evidence of guilt in convicting him of the various offences. The similar fact evidence ruling is not at issue in this appeal.
[4] For the reasons that follow I would dismiss the appeal. The trial judge’s treatment of the evidence that E.S. had failed to identify the appellant in court and C.L.’s evidence that she knew “Pierre Labelle” but was never asked to identify the perpetrator was sufficient; the trial judge was not required to explain specifically why such evidence did not raise a reasonable doubt on the question of identity. The appellant’s conviction for the criminal harassment of J.V. was reasonable, as the elements of the offence were made out beyond a reasonable doubt on the evidence. Finally, I do not accept that the trial judge erred in his treatment of the appellant’s evidence. He referred to the appellant’s willingness to fabricate evidence to explain why he rejected the evidence of the appellant, and not as positive evidence of guilt.
[5] I begin by summarizing the relevant evidence at trial and the trial judge’s reasons, and then turn to the issues on appeal and their resolution.
B. Evidence at Trial
(1) The Crown’s Evidence
[6] The appellant’s sexual services convictions were based on events that took place on April 28, 2015 involving E.S. and A.L. One of his criminal harassment convictions and one of the indecent act convictions were based on the incidents on April 29 and 30, 2015, involving T.C. The other indecent act conviction was based on the incident involving C.L. on April 30, 2015. The appellant was also convicted of criminal harassment based on events that occurred the evening of April 30, 2015, described by J.V.
(a) The E.S. and A.L. Incident: April 28, 2015
[7] E.S. and A.L. testified that on April 28, 2015, they were 14 and 13 years old respectively, and on their way to a medical clinic around supper time. They approached a man in a white vehicle at some mailboxes and asked if he knew where a certain road was located as they were looking for a bus stop. According to E.S., the man gave them “a really uncomforting look” and told them he did not know. A.L. testified that after they had first seen the man at the mailboxes, E.S. realized that she had forgotten her bus pass and went home to retrieve it, and that when A.L. continued walking to the bus stop, she had seen him again and he asked if they had found the road they were looking for.
[8] E.S. also testified that they saw the same man drive past them twice and noticed his vehicle driving alongside the bus once they boarded. After they arrived at their destination, E.S. and A.L. were walking around when they saw the same man parked, with his window down, looking at them. He gestured for them to come over. He held out some money and asked if they wanted to watch him play with himself for five dollars. After the girls refused, he offered more money, asked if they would like to give him a hand job, and invited them to get in the car. They quickly left and sought refuge in a nearby convenience store.
[9] E.S. described the man as white, not bad looking, fit and “like a dad” who “was bringing his kids to soccer practice”. He was wearing a baseball cap, a white t-shirt and prescription sunglasses. When asked “do you recognize the man you saw that day in the courtroom today?”, E.S. responded “[n]o”. E.S. described the vehicle the man was in as a white SUV. A.L. described the man as having “blondish” short hair, wearing a white hat, in around his 40s. She did not recall what he was wearing or if he had facial hair. She described his vehicle as a white “minivan”.
(b) The T.C. Incidents: April 29 and 30, 2015
[10] The incidents involving T.C. took place on two days as she was walking home from work shortly after 10 a.m. T.C. testified that she was 19 years old when a man pulled up beside her in a newer white Jeep Cherokee and asked if she wanted a ride home. She said, “[n]o, thank you”. As she continued to walk home she saw the same man, who again asked if she wanted a ride home. She said no and that she was almost home. She described the man she saw that day as wearing a t-shirt and jeans, but she could not recall whether he was wearing a hat. The next day, April 30, the same man pulled up alongside her at the same location at around the same time and asked if she wanted a ride home. This time she noticed that he was wearing shorts but had them pulled down and was masturbating. The man asked T.C. if she wanted to come inside the vehicle and watch him masturbate, promising not to touch her, or to do anything to her. She declined. He kept pushing, saying it would be okay, and again she refused. She felt very uneasy and sick to her stomach and just wanted to get home and lock the doors. As T.C. reached her house, the same man pulled over in his vehicle, handed her a piece of paper and said, “[y]ou should text me”. T.C. tried to take the paper but the man kept a firm hold on it and it ripped. The torn paper was part of a receipt from Food Basics, on which was written, “You are so hot, text me”. T.C. described the man as around six feet tall, from what she could see, and as being white and fairly tanned, with short brown hair. She did not notice any tattoos. T.C. identified the appellant as the man involved in the incidents both in a photo line-up and in the courtroom.
[11] Using the information on the torn receipt, a Food Basics store manager was able to note the exact time and location the purchases were made and was able to provide the police with video footage of a man and a woman making the purchases.
[12] T.C. told her stepfather what had happened during supper on April 30 and her stepfather decided to drive around that evening to see if he could see the vehicle she had described. He testified that from around 6:30 to 7:30 p.m., he had been driving through his subdivision and a nearby subdivision, where he had seen a white Jeep Cherokee, followed it, and taken down the licence plate number, which he gave to the police.
(c) The T.L. Incident: April 30, 2015
[13] The next incident took place on April 30, 2015 between 10:30 and 11:00 a.m. T.L. testified that, while she was sitting in her car in a parking lot, a man in a newer, white SUV pulled up beside her vehicle and asked if she wanted to watch him masturbate. She said no and he drove away. T.L. described the man as Caucasian and between the ages of 30 and 40, with very short light brown hair and wearing a plain t-shirt. (A directed verdict application was allowed in part, resulting in the dismissal of the criminal harassment charge respecting the T.L. incident.)
(d) The C.L. Incident: April 30, 2015
[14] C.L. testified that at around 11:00 a.m. on April 30, 2015, she was parked outside a pharmacy, waiting for her daughter’s prescription to be filled, when a man in a white Jeep pulled up beside her with the window down. She could see inside the vehicle that the man had his pants down and was masturbating and looking at her. C.L. described the man as having fairly dark hair with a really short haircut and wearing a grey t-shirt and grey track pants that were pushed down to just above his knees. She noticed a dark tattoo on his right arm. He was about six feet tall and was in his mid to late 30s. At the time there was nothing obstructing her view.
[15] Under cross-examination there was the following exchange (which formed the basis of the appellant’s unsuccessful directed verdict application in relation to the C.L. incident charge and is relevant to the appellant’s first ground of appeal – that C.L. knew the appellant and failed to identify him in court):
Q. Now, you knew Pierre Labelle before that day? A. I’m sorry? Q. Pierre Labelle was known to you before that day? He’d been to your house? A. Yes. Correct. Q. In fact, he and your brother used to go to work together? A. Correct. Q. And his vehicle had been parked in your driveway a few times? A. Correct.
[16] C.L.’s daughter H.T. testified that she saw a white vehicle pull up beside her mother’s truck. She described the man in the car as white, in his 40s to 50s, wearing a grey t-shirt, possibly a baseball hat and having a dark tattoo on his arm. She confirmed that she never saw the man’s face, nor did she see him do anything improper.
[17] H.T. was asked whether she had seen Pierre Labelle at the house before, but she did not recall. It was suggested that she had seen his car parked in their driveway and that he used to ride to work together with her uncle. She responded, “I’ve never seen his vehicle, but I have seen him go to work with my uncle a couple times.”
(e) The J.V. Incident: April 30, 2015
[18] J.V. testified that on April 30, 2015, when she was 16 years old, she was walking home at around 7 p.m., when she noticed a man in a newer white Jeep SUV. She saw him a total of five times as she was walking, and she had started to feel he was following her. The last time he was parked. She did not feel safe, so she screamed at the driver to “fuck off” and she called her sister. J.V. described the man as white, wearing a white muscle shirt and with short brown hair. She thought he had a dark tattoo on his right upper bicep.
(f) Other Crown Evidence
[19] Two of the Crown witnesses were acquaintances of the appellant, M.S. and C.A. M.S. confirmed that the appellant’s fiancée worked with her at a restaurant from 10 a.m. to 4 p.m. on April 28, 29, and 30, 2015 and that the appellant would drive his fiancée to and from work. She confirmed that the appellant had a tribal tattoo on one of his arms. She pointed out the appellant’s tattoo on a video from her workplace, as well as the white baseball cap that she said he always wore. M.S. also identified the appellant in the video that the police obtained using the Food Basics receipt that was given to T.C. She testified that the appellant stopped wearing his baseball cap and cut his hair very short after he heard that the police were looking for someone who was approaching young girls and flashing them. C.A. confirmed that the appellant normally wore a white baseball cap and that shortly before the appellant was arrested, he borrowed a shaving device from C.A. and used it to give himself a noticeably shorter haircut. A police detective testified about a composite map showing that all of the incidents occurred within a five-kilometre radius of the appellant’s home and in close proximity to his fiancée’s workplace. The detective also testified that he had run the licence plate provided by T.C.’s stepfather and that the plate belonged to a 2014 Jeep Cherokee that was registered to the appellant.
(2) The Defence Evidence
[20] The appellant testified and denied all of the allegations. He was 48 years old when he testified, and he was living with his fiancée and her daughter in 2015. He admitted to owning a 2014 white Jeep Cherokee at the relevant time, and to having a white baseball cap that he sometimes wore. Relying on notes he had made shortly after his arrest about what he was doing on April 28 to 30, 2015, the appellant provided evidence seeking to establish a partial alibi in relation to the allegations. He testified that he had been in the bathtub, working out, or otherwise engaged in some activity when each of the incidents occurred. The appellant acknowledged having been at the same medical clinic as E.S. and A.L. on April 28 at around the time they said they were accosted, but he explained that he was there to get some documentation about his carpal tunnel syndrome, and he denied having accosted them. He acknowledged using the mailboxes where E.S. and A.L. asked a man for directions, but he denied being that man. The appellant identified himself and his fiancée in the Food Basics video, but he denied that he gave the partial receipt containing a note to T.C. He did not recall shaving his head around the time that people were talking about a man driving around in a white Jeep masturbating in front of women, and he could not recall having worn his white baseball cap less frequently after April 30. When asked if he knew C.L. or her brother the appellant replied, “[n]o, unless her brother’s Justin Revist (ph). That’s the only person I travelled with, with my Jeep.”
[21] The appellant’s fiancée’s daughter testified that on the dates in question, she was at home and not in school because her teachers were on strike. Her evidence was that she woke up each day around 10-10:30 a.m. and heard water running in the bathtub and that it had to be the appellant in the tub because her mother was at work. The appellant’s fiancée testified that the appellant dropped her off at work each day for 10 a.m. on the dates in question. She identified herself and the appellant in the Food Basics video but said that some of the items listed on the receipt were things they would not buy. Both also testified that they could not recall and did not think that the appellant had left the house to run an errand in the evening on April 30.
C. The Trial Judge’s Reasons for Judgment
[22] The trial proceeded as a combined voir dire on the admissibility of similar fact evidence and the trial proper of the charges. The similar fact application was allowed in part, with the evidence concerning an off-indictment incident excluded.
[23] The trial judge noted that most of the defence evidence, other than the appellant’s denials and partial alibi evidence, corroborated the Crown evidence in many respects: the descriptions of the person who committed the offences were consistent with the appellant’s age, weight, tattoo, height, tanned complexion, and thinning short brown hair, and with his evidence that he frequently wore a white baseball cap and drove a 2014 white Jeep Cherokee.
[24] The trial judge found that the appellant’s flat denials were not reliable or accurate. The appellant’s denial that he stopped wearing the white baseball cap after finding out that the community was aware of a man in a white Jeep prowling the area, and his inability to remember cutting his hair, were incredible and not capable of belief. The trial judge said, with respect to the appellant’s evidence about the hat and the haircut: “This is arguably a more ancillary issue, but the court finds it to be indicative of his willingness to fabricate evidence favourable to himself.”
[25] The trial judge held that the evidence of the appellant’s fiancée’s daughter could not be relied upon. She was no doubt doing her best to assist her stepfather, but her precise memory of conveniently waking up between 10:15 and 10:30 each morning was not reliable. Moreover, her evidence that she did not speak to the appellant about the charges or have her mother help in drafting her statement was unreliable. The trial judge stated that, even if he had accepted the partial alibi evidence provided by the appellant’s fiancée’s daughter, he would not have had a reasonable doubt because the timing still allowed for all of the incidents to have occurred as the Crown witnesses had testified. Further, the evidence of the appellant’s fiancée did not provide much, if any, defence to the allegations.
[26] The trial judge referred to the inability of E.S. to identify anyone in court when asked whether she saw the individual she had described, but he did not comment on it further. He also referred to the cross-examination of C.L. and her evidence that she did know a “Pierre Labelle”. He noted that neither counsel had asked whether the Pierre Labelle that C.L. was talking about was the Pierre Labelle before the court, and more importantly, the man she had seen masturbating beside her in the white Jeep.
[27] The trial judge noted that this was not a purely circumstantial case because T.C. identified the appellant in a photo line-up after seeing him on four occasions over two days. The trial judge noted the frailties of this kind of evidence and said that, if T.C.’s identification had been the only identification evidence available, it would likely not be sufficient to find guilt beyond a reasonable doubt. However, the evidence from the receipt that was handed to T.C. and produced by the register at Food Basics at the exact time when the appellant was at the store, and which was proved by video evidence, provided unassailable corroboration identifying the appellant as T.C.’s assailant.
[28] The trial judge stated that it would also defy logic and common sense to suggest that another man matching the appellant’s physical description and driving a white Jeep Cherokee was also checking the mailboxes at the same time that E.S. and A.L. were catching a bus and then attending at the same medical clinic where E.S. and A.L. were accosted. He also concluded that it defied logic and common sense to suggest that another man with the same vehicle and physical description would be accosting J.V. at the same time that the appellant’s Jeep Cherokee was seen in the vicinity by T.C.’s stepfather (as confirmed by its licence plate).
D. Issue One: Did the Trial Judge Err in His Treatment of Certain “Non-Identification” Evidence?
[29] The appellant submits that the trial judge’s treatment of the “non-identification” evidence of E.S. and C.L. was inadequate. The appellant also argues on appeal (but did not argue at trial) that the trial judge should have taken into consideration the fact that none of the complainants other than T.C. had identified the appellant in pre-trial proceedings or in court. The appellant framed these submissions as insufficiency of reasons.
[30] E.S. was unable to identify in the courtroom the man who had accosted her. The appellant contends that, while the trial judge referred to this fact, he did not take into consideration the non-identification in determining whether such evidence raised a reasonable doubt. As for C.L., the appellant argues that it was an error for the trial judge to fail to consider the fact that there was no identification evidence from C.L., when she was previously acquainted with the appellant. While neither party asked C.L. to identify the appellant, the burden was on the Crown to prove its case, and the trial judge failed to explain why that gap in the Crown’s evidence did not raise a reasonable doubt. The appellant also contends that the trial judge misapprehended the evidence, when, in his reasons on the directed verdict application, he speculated that the inability of C.L. to identify the appellant arose from her position in the vehicle, which “likely precluded her from really having any sightlines to his face”.
[31] The appellant asserts that a new trial is required on the counts related to E.S. and C.L., and, in light of the similar fact ruling, in relation to the other counts as well. The appellant relies on the Supreme Court decision in R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 49, where the majority said, “the inability of a witness to identify the accused in court as the perpetrator is entitled to some weight.” (See also R. v. Ranger (2003), 178 C.C.C. (3d) 375 (Ont. C.A.), at para. 171.)
[32] The Crown submits that there would have been a positive obligation on the trial judge to address the failure of E.S. and C.L. to identify the appellant in court and to explain why this did not raise a reasonable doubt on identity, if there had been some probative exculpatory value to this evidence. According to the Crown, the failure of E.S. and C.L. to identify the appellant was meaningless because neither was asked whether she believed that she would be able to identify the man who accosted her. The Crown points out that each of the Hibbert and Ranger cases involved an eyewitness who, after having identified an accused in a photo line-up and having expressed confidence about being able to identify the accused, was then unable to identify the accused in court (Hibbert, at paras. 18-19; Ranger, at para. 165).
[33] I would dismiss this ground of appeal.
[34] E.S. did not recognize the appellant in court as the man who accosted her. There was no evidence as to whether she had previously identified the appellant in a photo line-up or at all, and she was not asked whether she thought she would be able to identify her assailant before she was asked whether she recognized him in the courtroom. Instead, she was asked to generally describe the man that she saw, and she offered a description that was similar to those that were provided by the other complainants, saying that he looked “like a dad”, that he was wearing a baseball cap, a white t-shirt and sunglasses and that he was white, not bad looking and looked fit, like he was in good health.
[35] C.L. was asked in cross-examination whether she knew “Pierre Labelle” and she confirmed that Pierre Labelle used to travel with her brother to work and had parked in her driveway. She was not asked to make an in-court identification of the man who had been masturbating in the vehicle next to her. The appellant testified that he did not know C.L.
[36] In his reasons for judgment the trial judge simply referred to this evidence as C.L. advising that she did know a Pierre Labelle and that “[n]either counsel, however, asked her whether the Pierre Labelle she was talking about was the Pierre Labelle before the court, and more importantly, the man she had seen masturbating beside her … in the white Jeep.” He had previously addressed the evidence in greater detail in his reasons for dismissing the directed verdict application in relation to the C.L. incident. The trial judge observed in his reasons on the directed verdict application:
There’s no temporal context provided as to when this ever occurred, but at any rate, that she knew a “Pierre Labelle”. Now, that observation was, if I might say, just left hanging there. There was no follow-up by either the defence, nor the prosecution in re-examination, as to whether the man that [C.L.] described knowing as Pierre Labelle, was present in court, and if so, whether the Pierre Labelle that she may have identified in court, was the man who she saw masturbating from her vehicle. She was never asked those questions. As I say, it was simply left, whether she knew a Pierre Labelle. Certainly, it’s far from clear that she was referring to the defendant before the court, I assume that that was the suggestion, but as I say again, she wasn’t asked any further questions in that regard.
[37] The trial judge went on to note that, given C.L.’s strong response about how the event made her feel, “one would expect that if it was the defendant before the Court, she would certainly have noted it, but again, she simply was not asked.” He referred to the configuration of the two vehicles, that C.L. was seated higher in her vehicle looking down into the Jeep across to the driver’s seat where he was masturbating, that her focus would have been on his torso area and not particularly concerned with his facial features, and that “her being seated somewhat higher likely precluded her from really having any sightlines to his face in any event.”
[38] I do not agree that the trial judge was “unfair” to C.L.’s evidence about knowing “Pierre Labelle” or that he misapprehended the evidence that C.L. knew the appellant and had the opportunity to see him to the extent that she would have identified him if he had been the person who had been involved in the incident. The trial judge appreciated that the point of defence counsel’s question was to suggest to C.L. that she knew the appellant, but he concluded that the evidence that was elicited only confirmed that she knew “a” Pierre Labelle. This was because, as the trial judge observed, her answer was “left hanging”. She was not asked about the context in which she knew Pierre Labelle, nor was she asked to identify the appellant as the Pierre Labelle she knew, and more importantly, as the man involved in the incident. Indeed, on appeal, the appellant acknowledges that defence counsel could have asked C.L. additional questions to establish stronger non-identification evidence.
[39] The trial judge’s observation that C.L. may not have had a good view of the man’s face was consistent with her evidence, in which she described what he was wearing and doing but said “all I got was a side view of his face”.
[40] I agree with the Crown that in this case the “non-identification” evidence was not exculpatory and had no probative value, as there was no suggestion that the witnesses would have been able to identify the perpetrator. There was no evidence they had made a previous identification, nor were they asked whether they thought they would be able to identify the person if they saw him again (as in Hibbert and Ranger). The trial judge could not be faulted in these circumstances for failing to deal with the non-identification evidence other than in the way he did. There was no obligation in the circumstances for the trial judge to explain why such evidence did not raise a reasonable doubt.
[41] E.S. and C.L., as well as all of the other complainants, provided consistent general descriptions of the man’s appearance. This evidence together with the cross-count similar fact evidence, which included the compelling evidence identifying the appellant as the perpetrator of the offence involving T.C., including her photo line-up identification, the torn Food Basics receipt, and the identification of the appellant at the grocery store in video footage, was sufficient to establish that the appellant was the perpetrator of all of the offences.
E. Issue Two: Was the Appellant’s Conviction for Criminal Harassment of J.V. Unreasonable?
[42] The appellant asserts that his conviction for criminal harassment of J.V. was unreasonable: that no jury, acting judicially, could reasonably have come to a verdict of guilt on the criminal harassment charge in this case that depended substantially on circumstantial evidence: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.
[43] The appellant submits that, beyond the trial judge’s finding on identity that it “defies logic and common sense to suggest another man driving a white Jeep Cherokee and matching Mr. Labelle’s physical description … would be accosting [J.V.]”, the trial judge did not assess whether any of the other elements of criminal harassment had been established. At most, J.V.’s evidence can establish that she was followed from place to place and feared for her safety. The appellant submits that J.V.’s evidence was incapable of establishing the other essential elements: that the driver was following her intentionally, that he was aware of, or reckless to, the fact that she felt harassed, and that her fear was reasonable. The appellant submits that the conviction should be vacated, and that he is entitled to an acquittal on the charge respecting the J.V. incident.
[44] The Crown contends that the failure of the trial judge to explicitly address in his reasons all of the elements of the offence related to the J.V. incident can be explained by the fact that the primary issue was identity and that the other elements of criminal harassment in relation to J.V. were not live issues at trial. Indeed, defence counsel did not make the argument at first instance that is made on appeal, that the other elements of the offence were not made out. The Crown asserts that the evidence clearly supports the appellant’s conviction on this charge.
[45] I agree with the Crown’s submissions. On a fair reading of the record and the reasons for judgment, the key issue in relation to the J.V. charge was identification. While the appellant was successful in having the charge of criminal harassment in relation to the T.L. incident dismissed because there was no evidence of repeated communication or that she feared for her safety, no such application was brought in respect of the J.V. incident. Nor did defence counsel offer any reply to the Crown’s submissions on how the elements of the criminal harassment offence were satisfied in relation to the T.C. and J.V. incidents.
[46] Considering the evidence as a whole, the test for an unreasonable verdict is not met. The evidence supports all of the elements of the offence of criminal harassment in respect of the J.V. incident. J.V. saw the man on five occasions, and she concluded that he was following her. She testified that she did not feel safe, so she screamed at the driver to “fuck off” and she called her sister. It was reasonable to infer from J.V.’s evidence alone that the man was intentionally following J.V. and knew, or was reckless or willfully blind to the fact, that she felt harassed. As the Crown emphasized at trial, the fear was reasonable for a 16-year-old who was approached by a much older man in a vehicle. There was also the similar fact evidence in relation to T.C., E.S. and A.L. which supported the inference that the appellant was intentionally following J.V., as it was part of a distinctive pattern, and that, based on the reactions of the other complainants, he would have understood that his behaviour was unwanted. By the time the appellant was following J.V., he had witnessed the reactions of several other women and would have known that J.V. would feel harassed by his behaviour.
[47] Accordingly, I would not give effect to this ground of appeal.
F. Issue Three: Did the Trial Judge Improperly Use His Finding That the Appellant Was Willing to Fabricate Evidence as Positive Evidence of Guilt?
[48] The appellant defended the charges by denying his involvement in the offences and by providing a partial alibi. The trial judge rejected the appellant’s evidence and found that his credibility was damaged by his denial that he cut his hair and stopped wearing his baseball cap after the community became aware of the offences. He went on to say: “This is arguably a more ancillary issue, but the court finds [such denials] to be indicative of his willingness to fabricate evidence favourable to himself.”
[49] The appellant contends that, while the trial judge stated that the post-offence conduct was “arguably a more ancillary issue”, he used the rejection of the appellant’s evidence as the basis for drawing a general adverse credibility finding against him. The appellant submits that the trial judge relied on his rejection of the appellant’s evidence as independent evidence that the appellant was guilty in the absence of any independent evidence to support a finding of fabrication or concoction.
[50] The Crown asserts that the trial judge did not use his view of the appellant’s willingness to lie and his findings that he had lied to add to the strength of the Crown’s case against him, and instead, used them only to reject the appellant’s evidence and to explain why it did not leave him with a reasonable doubt.
[51] There is no dispute about the relevant principles. An accused person’s fabrication or concoction is a type of after-the-fact conduct that can be used as circumstantial evidence of guilt, only where there is independent evidence of fabrication. It is an error for a trial judge to use his disbelief in the evidence of an accused to infer concoction, and then to use the finding of concoction as evidence of guilt: see R. v. Coutts (1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras. 13-18, leave to appeal refused, [1998] S.C.C.A. No. 450; R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at paras. 166-174.
[52] The appellant argues that in finding that the appellant had fabricated his evidence, the trial judge went beyond merely rejecting his evidence on that point, effectively concluding that the appellant’s testimony denying that he had stopped wearing his hat was evidence that he falsified evidence in order to mislead the court.
[53] I see no such error here. The trial judge’s reasons, read as a whole, show that, while he referred to the appellant’s willingness to fabricate evidence favourable to him, he did not use this finding as evidence of after-the-fact conduct indicative of guilt or as positive evidence for the Crown. The reference was made in the context of his explanation as to why he rejected the appellant’s denials and partial alibi evidence and after he had already made his findings on credibility.
[54] I also disagree with the appellant’s submission that the trial judge’s finding that the appellant fabricated evidence permeated his assessment of the rest of the defence evidence, such that he extended the inference of fabrication to the evidence of the appellant’s fiancée’s daughter in order to reject her evidence. In addressing the evidence of the appellant’s fiancée’s daughter, the trial judge indicated that he was not critical of her credibility, but he had grave reservations about its reliability – that she was able to remember conveniently when she got up every morning during a period when she was not attending school, yet she could provide no details or was uncertain about what happened once she got up. Although he commented that she was “no doubt, doing her best to assist her stepfather”, the trial judge did not reject her evidence simply because he disbelieved the evidence of the appellant. In any event, the trial judge stated specifically that he would have had no doubt that about the appellant’s guilt even if he had accepted her evidence.
G. Conclusion and Disposition
[55] For these reasons I would dismiss the appeal.
Released: February 5, 2021 (“K.M.v.R.”)
“K. van Rensburg J.A.”
“I agree. M.L. Benotto J.A.”
“I agree. Thorburn J.A.”