Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO DATE: 20241029 DOCKET: COA-23-CR-0771

Trotter, Zarnett and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Michael Weedon Appellant

Counsel: Mark Ertel, for the appellant Maria Anghelidis, for the respondent

Heard: October 25, 2024

On appeal from the conviction entered by Justice Robert Wadden of the Ontario Court of Justice on April 18, 2023.

Reasons for Decision

[1] The appellant was convicted of criminal harassment (Criminal Code, R.S.C. 1985, c. C-46, s. 264(1)), willfully altering computer data (s. 430(5)), and making available intimate images without the consent of the complainant (s. 162.1(1)). He appealed his convictions. At the conclusion of the hearing of the appeal, we dismissed the appeal with reasons to follow. These are our reasons.

[2] This is a case of what is colloquially known as “revenge porn”. On September 25, 2021, intimate images and videos of the victim, which she stored in the private area of her Snapchat account, were made available on her “Story”. A Snapchat account’s “Story” is accessible only to “friends” – individuals who are added, and were accepted by, the account holder.

[3] At trial, it was alleged that the appellant accessed the victim’s Snapchat account and uploaded these images and videos to her Story, which were accessible by her roughly 500 friends. The victim testified that she recalled 86 of her friends viewed the Story and about 4 friends took screenshots before she regained access to the account and took the uploads down.

[4] The appellant and the victim had been in an intimate relationship. On September 11, 2021, in the midst of their breakup, the appellant sent the victim many harassing text messages. He became increasingly angry because the victim would not take his calls or respond to his text messages. His messages included: “U have 5 more minutes”; “Last chance”; “Next I post on social media”; “I think u should really call”; “Answer ur phone I don’t want to have to do this”; “5 min before facebook”; and “It will pby [probably] ruin ur career n don’t forget I have those great videos n pictures.”

[5] At trial, the appellant testified that his last comment referred to intimate images of the victim that were in his possession and that he was threatening to post on Facebook.

[6] On September 25, 2021, the appellant sent screenshots to the victim demonstrating that he had access to her Freedom Mobile account, showing all of the calls that she made that day to others. Along with the screenshots, the appellant said, “U said u were hurt by me venting let’s see how u r after I actually do the actions.”

[7] The victim testified that, later that day, she received notifications that passwords for some of her accounts, including her Hotmail, Facebook, Snapchat, and Instagram accounts, had been changed. The victim messaged the respondent: “Get out of my accounts now you low life piece of shit.”

[8] In response to this message, the appellant sent the following abusive and misogynistic texts: “Bring it on u fucking cheating whore”; “U fuckibg slut”; “Cheating again”; “Ur done fuck u ur job is done ur life is done”; and “Have fun with this.”

[9] About two minutes after his last message, the appellant wrote: “Ya check ur snaps they r all on ur story.” He later wrote: “Cheaters get what they get”; and “Proof that ur a cheating fuck 3 strike.”

[10] Around the time she received these messages, the victim discovered that intimate images and videos had been posted on her Story. These were images and videos that she kept in the private section of her account. As the trial judge said in his reasons, “[i]t is undisputed that someone hacked into her account at the same time [the victim] and Mr. Weedon were having this text exchange.”

[11] The appellant testified and admitted sending the many abusive text messages and to accessing her Freedom Mobile account. He said that he had her passwords from when they were together. He denied that he changed any of the victim’s passwords, accessed her accounts, or posted the intimate images and videos on her Story. He said the text sent to the victim to “check ur snaps they r all on ur story” was merely to advise the victim that her images had been re-posted because he had received a notification. The appellant acknowledged having other intimate images of the victim, separate from the images on her Snapchat account.

[12] The trial judge rejected the appellant’s account as not believable nor credible. He found the text messages sent by the appellant on September 11 and 25 contradicted and undermined his testimony. In between sending “Cheaters get what they get” and “Proof that ur a cheating fuck 3 strike” the appellant wrote, “I acted as immature as u did.” The trial judge found this was a reference to the images and videos posted on Snapchat.

[13] The trial judge was satisfied beyond a reasonable doubt that the appellant had committed the three offences charged. The trial judge said that, “[t]he fact that he made an explicit threat to do the very act that was actually done days later, albeit with different intimate images, undermines the credibility of his denials.”

[14] The appellant appeals his convictions on three grounds. He submits that: (1) the trial judge shifted the burden of proof to the appellant; (2) the trial judge erred in his assessment of the evidence; and (3) the trial judge erred in concluding that the appellant’s guilt was the only reasonable conclusion based on the totality of the evidence. We reject these grounds of appeal.

[15] First, the trial judge did not reverse the burden of proof. In his reasons, the trial judge referenced the principles outlined in R. v. W.(D.), [1991] 1 S.C.R. 742, more than once. He applied the principles correctly. The appellant submits that the trial judge placed the burden on the appellant to prove that someone else was responsible for hacking the victim’s accounts. Rather than reversing the burden of proof, the trial judge was merely responding to the defence submission that someone else must have accessed the victim’s accounts. This submission invited a consideration of the evidential plausibility of this theory of the case. It did not distract the trial judge from the proper burden of proof. He did not require that the appellant prove anything. He ended up rejecting the theory as speculative. He did not err in his approach.

[16] Second, we are not persuaded that the trial judge misapprehended the evidence. As the appellant observes, it was not proved, forensically, how the victim’s Snapchat account was accessed. He submits that the trial judge filled in this evidentiary gap by concluding that, because he accessed the victim’s Freedom Mobile account, he similarly accessed her Snapchat account. The appellant submits that this was erroneous reasoning because it was not proved that the appellant surreptitiously accessed the Freedom Mobile account. However, the victim testified that she had changed her password to this account, and she found it was “miraculous” that the appellant could still access it. This provided an evidentiary foundation for the trial judge to conclude that the appellant accessed the victim’s other accounts. But this only formed part of the trial judge’s analysis. As discussed below, the evidence pointed exclusively to the appellant as the person who accessed the victim’s other accounts.

[17] Third, the trial judge did not err in his conclusion that the appellant’s guilt was the only reasonable inference to be drawn from the evidence as a whole. The case against the appellant, though circumstantial in nature, was overwhelming. The appellant had motive to commit the offences. He expressed animus and a hateful attitude toward the victim by sending a trail of vitriolic and abusive messages in which he threatened to share the victim’s intimate images and videos. In the course of this barrage, he did just that. After the images and videos went public, he wrote things that suggested that he had achieved what he had set out to do (i.e., “Cheaters get what they get”; and “Proof that ur a cheating fuck 3 strike”). The appellant submits that the trial judge erred in treating these statements as “implied admissions”. We do not agree with this submission. The trial judge did not err in finding the messages were “implied admissions”. It was open to the trial judge to make this finding. These messages essentially completed the appellant’s narration of his offending, in real time.

[18] The appeal is dismissed.

“Gary Trotter J.A.”

“B. Zarnett J.A.”

“J. George J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.