Ontario Court of Justice

Date: 2014-12-16

Court File No.: Regional Municipality of Durham 998 13 13430

Between:

Her Majesty the Queen

— AND —

Michael Tomkins

Before: Justice J. De Filippis

Heard on: August 21 & October 31, 2014

Reasons for Judgment released on: December 16, 2014

Counsel:

• Ms K. Kennedy — counsel for the Crown
• Mr. M Scratch — counsel for the defendant

Reasons for Judgment

De Filippis, J.:

[1] The defendant is charged with two counts of failure to comply with a recognizance: (1) not to be away from his place of residence daily except in the direct company of his surety and (2) not to possess any cellular phones, pagers, weigh scales, mobile communication devices, any hydroponic growing equipment or any other drug paraphernalia. The offences are said to have occurred at the City of Pickering between July 25 and August 9, 2013. I heard from two police officers and the defendant's brother. On consent, I also received a report from a forensic electronic analyst. My review of the evidence reflects the fact that, although the reliability of some testimony is in dispute, this is not a credibility case. Moreover, the issue with respect to count one is a matter of law, not fact.

[2] In the summer of 2013, the defendant was subject to an order of judicial interim release with respect to outstanding firearms charges. Police officers conducted surveillance at the defendant's place of residence on several occasions. P.C. Boileau testified that on July 25, he began watching the home at 12:30 PM. At 2:43 PM, he saw the defendant come out of the garage "carrying a cell phone" and "texting". He described it as a "black", "older model" cellular telephone. He observed the defendant walk away alone and lost sight of him. The defendant returned a few minutes later, with "a can of pop" in hand. At 3:28 PM, he again exited the home, this time with a dog. He was followed several blocks and observed to meet a person operating a motor vehicle. Later that day, a man arrived at the home on a motorcycle and met the defendant outside the home. P.C. Boileau testified he saw the defendant talking on the same telephone while both men were standing in the open garage. The officer conceded that an iPod and cellular telephone are similar in shape and size.

[3] P.C. Conforti is another one of the surveillance officers. He testified that on July 25 he also saw the defendant talking on a mobile telephone outside his place of residence. While P.C. Boileau lost sight of the defendant, this witness followed him to a nearby convenience store and saw him leave that place with a soft drink. Later that day, he saw the defendant standing in the driveway talking on the "same black phone" for four minutes, from 6:25 to 6:29 PM. On August 8 at 7:36 PM P.C. Conforti observed the defendant walking a dog outside the home and "talking" on a mobile phone. He walked to the local convenience store and met his mother and two children. His mother is the surety in question. The following day, at 7:38 PM, the officer saw him walking the dog, while "texting" on the same device. Like his partner, P.C. Conforti conceded that an iPod and cellular telephone are similar in shape and size. He confirmed that an iPod, later identified as being the same as one belonging to the defendant, looks much like the device he observed. The officer did not agree that these devices are similar to a cordless telephone as the latter, in his experience, is larger.

[4] The Defence called Steven Tomkins, the defendant's older brother, as a witness. He was temporarily living with the defendant and their mother in the summer of 2013, having recently separated from his spouse. He testified that there are three cordless telephones in the house, all of them black in colour, with a range to the end of the driveway. He conceded it is "possible" his brother possessed a cellular telephone during this period, but never saw one and would be surprised to learn otherwise as it was a condition of bail that he not have one and his mother, the surety, is strict. Mr. Tomkins also stated that he and the defendant received identical iPods from their mother the preceding Christmas. These are "second generation" iPods that do not have the capability to send text or voice messages. However, they can be used to send email, when connected to the internet. He confirmed the home had wifi with a range to only a few feet out the front door. The witness agreed that the iPod looks similar to most cellular telephones and that both are smaller than the three cordless telephones at the house.

[5] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v. W.D., 63 C.C.C. (3d) 397. To support a finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adduces evidence, that standard is not met if the evidence (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty. In this regard, the Defence evidence is to be viewed in isolation; rather, it is to be assessed in context of the entire case: F v. R.D., [2004] O.J. 2086 (O.C.A).

[6] The Defence does not dispute the facts that would otherwise support a conviction on count 1; that is, there is no doubt the defendant was outside his home, while not in the direct company of his surety on the dates in question. However, it is submitted that the bail order does not clearly prohibit such conduct and that this ambiguity must be resolved in favour of the defendant. The Crown suggests I can take judicial notice that in this jurisdiction, bail orders are read to a detainee at the time it is granted and, therefore, the terms would be made clear to the defendant. I disagree that I can take judicial notice of this practice. In any event, the difficulty with this argument is it assumes the term in question was imposed and the written recognizance is simply a clerical error. I cannot take this for granted.

[7] The recognizance used in this matter is a standard form document with 12 common terms along with space for additional conditions. Eight of the common terms are circled and checked off. Some of these typed terms are supplemented by written notations; for example, the typed words "reside with your surety" is followed by these written words, "each and every night". As noted, a small box beside this term is circled and checked off. The next common term is the one at issue in this case. The typed words, "Not to be away from his/her place of residence daily except" are followed by this written notation: "in the direct company of your surety". The box beside this condition is not circled and not checked off. Given the impugned term and the document as a whole, one reasonable interpretation is that this is a clerical error; that the person who drafted the recognizance mistakenly failed to circle and check the appropriate box. That, however, is not the only interpretation. For example, it may be that the term was discussed but eventually not imposed. In the absence of a transcript of proceedings or other clarifying evidence, I agree with the Defence that it would be unsafe to convict.

[8] There is no ambiguity with respect to count 2; cellular telephones are specifically mentioned in the order. Defence counsel argues that I cannot have confidence that the police observed the defendant in possession of such a device given the distance from which the observations were made and the obstructions present. The Defence concedes that an iPod and cordless telephone are mobile communication devices – but only if they are operable. It is submitted that an iPod, unconnected to the internet and a cordless telephone, out of range, are not mobile communication devices.

[9] The Crown argues that confidence in the observations of the officers is grounded in the fact that they did not come upon the events by chance but specifically targeted the defendant's residence for the purpose of monitoring his compliance with bail conditions. Moreover, the observations were conducted in daylight, from a variety of angles, and, in the case of P.C. Conforti, with the aid of binoculars. In these circumstances, it is submitted that I should accept that the defendant was carrying a black older model cellular telephone, appeared to be talking into it, and appeared to be texting with one hand and then with two. In any event, the Crown also points out that it is clear from the testimony of Steve Tomkins that the defendant possessed an iPod with wifi capability and that this qualifies as a mobile communication device, even if not connected to the internet.

[10] I note that the recognizance prohibits possession, not merely use, of the devices. This provides some support for the view that the term in question prohibits the possession of any mobile device that can be used to communicate, even when it is not operable as such because it is not connected to the internet. A different result may follow if the device is broken and is incapable of being used to communicate. In any event, I need not decide the interesting issues raised by counsel about how to interpret the phrase "mobile communication device" and whether such devices must be operable at the time of possession.

[11] I find that the defendant was observed, more than once, in possession of a cellular telephone. In coming to this conclusion, I agree with the Crown that the evidence of the two surveillance officers is compelling. As already noted, their credibility is not in issue. I find that they are reliable as well. Both testified they saw the defendant talking into such a device and using it in a manner consistent with texting. Although the act of texting might be mistaken for that of operating the music functions on an iPod, there is no evidence the defendant was wearing earphones. The officers did not mention this in examination in chief and it was not put to them in cross-examination. Any doubt about this matter is resolved by the fact that talking on a mobile telephone cannot be confused with the use of an iPod. The testimony given by the surveillance officers was not successfully challenged. Moreover, this evidence was not contradicted by that of the defendant's brother. I do not doubt his sincerity. However, all I can take from his evidence is that in the short time he had been living at the home, he had not seen the defendant with a cellular telephone and does not believe he had one.

[12] I find the defendant not guilty of count 1 and guilty of count 2.

Released: December 16, 2014

Signed: Justice J. De Filippis