Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211221 DOCKET: C68369

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Bradley Gary Priestap Appellant

Counsel: Bruce Engel, for the appellant Michael Fawcett, for the respondent

Heard: December 13, 2021

On appeal from the convictions entered on August 27, 2013, and the sentence imposed on October 16, 2015, by Justice Thomas J. Carey of the Superior Court of Justice.

Reasons for Decision

Overview

[1] The appellant, Bradley Priestap, appeals his convictions on multiple counts of voyeurism, break and enter to commit voyeurism, possession of instruments for break and enter, and prowling on property at night. The events that gave rise to the charges occurred during several nights in August and September 2012 in a student housing neighbourhood near the campus of Western University. At sentencing the appellant was declared a long-term offender.

[2] The appellant was sentenced to serve nine years in custody followed by a ten-year supervision order. Although his notice of appeal seeks leave to appeal from his sentence, before us the appellant abandoned his sentence appeal.

[3] The appellant advances three main grounds of appeal in respect of his convictions: (i) the trial judge failed to provide adequate reasons that were supported by the evidence; (ii) the trial judge erred by summarily dismissing “any notion that an alternate suspect could have been responsible for the crime[s]”; and (iii) ineffective assistance of counsel.

[4] At the conclusion of the appellant’s submissions, we advised that it was not necessary to hear from the respondent and dismissed the appeal, with reasons to follow. These are those reasons.

Adequacy of reasons

[5] The appellant’s challenge to the adequacy of the trial judge’s reasons combines (a) disagreement with some specific findings of fact, such as the similarity of the type of duct tape on the appellant’s camera with that found in his car – together with a bag containing a black toque, flashlight, and screw driver – with (b) a complaint that the trial judge did not provide detailed reasons for why he rejected the appellant’s explanation about his presence in the student housing as it “bordered on laughable.”

[6] As stated in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15, “The core question in determining whether the trial judge’s reasons are sufficient is the following: Do the reasons, read in context, show why the judge decided as he did on the counts relating to the complainant?” When reasons are alleged to be insufficient, an appellate court must perform a functional and contextual reading of a trial judge’s reasons to assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 69.

[7] In the present case, the trial judge’s reasons explain what he decided and why. The reasons reveal that the trial judge relied on an accumulation of evidence to convict the appellant: the pattern of travel of the appellant’s vehicle recorded by a warrant-approved tracking device attached to the car; the observations of the officers who conducted surveillance of the appellant in the student housing area on the night of September 28, 2012; the arrest of the appellant that evening in that area; the photographs of partially clad female students found in the appellant’s camera; the duct tape that covered the flash on the appellant’s camera; the contents of the black bag seized from the appellant’s car pursuant to a warrant; and the description given by a female student of the person who had entered into her room when she was asleep.

[8] As well, the trial judge spent considerable time in his reasons describing and assessing the appellant’s explanation for moving amongst various houses in the student area at night: namely, that he was looking for a friend named Rob or Rocco who previously had used his camera and must have been the person who took the photographs of the female students. In his reasons, the trial explained why he found “many parts of Mr. Priestap’s story” to be “ridiculous and an affront to common sense and intelligence” and, therefore, rejected it.

[9] It was for the trial judge to assess the appellant’s credibility and we see nothing unreasonable in the conclusion he reached. Nor are we persuaded that the trial judge’s factual findings were tainted by palpable and overriding error.

[10] Accordingly, we reject this ground of appeal.

Alternate suspect

[11] The appellant submits that the trial judge failed to provide trial counsel with an opportunity to present the evidence of a third-party, or alternate, suspect.

[12] The record does not support this ground of appeal.

[13] Evidence of the possible involvement of a third party in the commission of an offence is admissible if there is a significant connection between the third party and the crime: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 46-47.

[14] As the respondent Crown accurately notes, the trial judge did allow the appellant to call evidence with respect to two proposed third-party suspects but did not permit such evidence in respect of a third individual. The conduct of the third individual was described in an April 27, 2013 newspaper article that trial counsel put to one of the investigating officers, P.C. Lipskey, during cross-examination. The article described the activity of a young man who drove a car on to the Western University campus, would stop and ask for directions from a female student, invite the student into his car to show him how to reach his destination, and then proposition the student for sexual favours.

[15] Officer Lipskey testified he was not familiar with the investigation into the activities described in the article, which was published about half a year after the appellant’s arrest. When trial counsel continued her questioning, the trial judge interjected and the following exchange took place:

THE COURT: I’ll let you ask him about the other ones, but this is – are you suggesting anything that involves anything possibly sexual and University students is relevant, any investigation is relevant to this investigation? You’re talking about somebody propositioning people in cars. This is an investigation into break and enters and also, trespass and prowling by night and voyeurism while people are sleeping. Am I supposed to think that, first of all, the fact that offences are happening while an accused person is in custody, is not remarkable? There’s going to be all sorts of things happening, maybe this kind of thing happening, but secondly this second set of circumstances doesn’t seem to have any relation to whatsoever the charge that we’re being, that we’re dealing with here.

MS. CONRON: Well Your Honour, it would be my submission that it is tangently related because it is of a sexual nature. It is on the Western University region. It’s while Mr. Priestap is in custody. I expect he’ll provide evidence and this may tie into that.

THE COURT: Well the Officer has said he doesn’t know any – he doesn’t agree with you that it’s related. I, I don’t think you’re, I think what you’re, frankly you’re wasting our time with it.

MS. CONRON: Well I’ll move on.

THE COURT: Okay.

[16] Given the lack of connection between the conduct of the driver of a car on the Western University campus and the night-time prowling and break and enter activity for which the appellant was charged, we see no error in the trial judge suggesting to counsel that it would be a waste of time to pursue further questioning about the investigation into the car driver.

Ineffective assistance of counsel

[17] Although the appellant filed a lengthy affidavit alleging numerous deficiencies in the legal assistance provided to him by trial counsel, in his factum he relies on two allegations of ineffective assistance: (i) his counsel did not properly prepare him for trial, specifically by failing to ask the appellant that he was aware of the police presence in the student area at all times and was in the area at other times; and (ii) his counsel failed to bring a Charter application to exclude any and all police observations of the appellant.

[18] We accept the Crown’s submission that the appellant has failed to demonstrate that trial counsel’s alleged competence prejudiced the appellant’s right to a fair trial: R. v. Garofoli (1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 152, rev’d on other grounds, [1990] 2 S.C.R. 1421.

[19] In respect of counsel’s alleged failure to ask the two questions, the appellant has not demonstrated how any answers he might have given would have impacted the result. We agree with the Crown that the trial judge’s strong finding against the appellant’s credibility casts a pall over his attempt before us, in effect, to reconstruct an innocent explanation for his presence in the student residence area on the nights in question.

[20] In respect of a Charter application that was never brought, we accept the Crown’s submission that the appellant has not presented a proper record on this appeal to enable this court to evaluate his Charter claims nor has he demonstrated that the result would have been different had such an application been litigated.

[21] We see no merit in this ground of appeal.

Disposition

[22] For the reasons set out above, the appeal from convictions is dismissed.

“E.E. Gillese J.A.”

“David Brown J.A.”

“S. Coroza J.A.”