Court File and Parties

Ontario Court of Justice

Date: February 25, 2015

Court File No.: Brampton 3111 998 14 14495

Between:

Her Majesty the Queen

— and —

Mr. Jordan Quatrale

Before: Justice P. F. Band

Heard on: February 18, 2015

Reasons for Judgment released on: February 25, 2015

Counsel:

Ms. K. Watson, counsel for the Crown
Mr. K. Jim, counsel for the accused Mr. Jordan Quatrale

Judgment

Band J.:

I: Introduction

[1] Mr. Quatrale is charged with breaching a non-communication term of his recognizance on November 16, 2014 by way of a Facebook message to M.D.

[2] That recognizance, it is alleged, relates to charges of Sexual Assault and Extortion that were laid against Mr. Quatrale. For purposes of these reasons, and without intending to minimize the conduct presently alleged, I refer to those charges as the "substantive charges."

[3] The Crown called two witnesses. First, she called Ms. M.D., who is Mr. Quatrale's former girlfriend and the complainant in relation to the substantive charges and the breach allegation. She then called Police Constable Garth Reid, who was the officer in charge of the investigation into the substantive charges. He was also present during Mr. Quatrale's arrest on those charges.

II: Exhibits Tendered at Trial

[4] The Crown tendered two exhibits:

1. A 10-page print out of the message that Ms. M.D. received from a Facebook account she knew to be Mr. Quatrale's for many years. The account bears the name "Quatrales Jordan."

2. The following collection of certified court documents each bearing the court's seal.

Information #012509, which contains the substantive charges. The details contained on that Information include the following:

Accused: Jordan Quatrale
Address: R[…] Av Brampton ON
Date of birth: 1994/[…]/[…]

The offences are alleged to have been committed during a period of 24 days prior to July 18, 2013.

The matter came to a conclusion on December 3, 2014, when the accused was sentenced to a period in jail and a probationary term of 2 years. He was also subject to a DNA order and a weapons prohibition pursuant to s. 109 of the Criminal Code.

These orders are attached to the Information, and they list the same name and date of birth. The probation order also contains the same address as that found on the Information.

Exhibit 2 also includes another Information alleging a breach of undertaking. It also contains the same name, address and date of birth. It, too, refers to M.D. That matter was also completed on December 3, 2014.

Also attached are two copies of Recognizances of Bail. One dated March 13, 2014, on which is written the word "vacated" with a time stamp of September 16, 2014 beside it. The second recognizance is dated September 16, 2014.

Both recognizances contain a condition prohibiting Mr. Quatrale from making any contact with Ms. M.D. One of the changes apparent in the second recognizance is that the residence condition has been changed to allow Mr. Quatrale to live in the basement of R[…] Avenue Brampton. Diane Quatrale of R[…] Avenue, Brampton On, is surety on both recognizances.

Both recognizances also contain a number of signatures. Those reading Jordan Quatrale are very similar to one another.

[5] The Information upon which Mr. Quatrale is being tried, Information #014495, includes the following details:

Accused: Jordan Quatrale
Address: R[…] Av, #BSMT, Brampton ON, L[…]
Date of birth: 1994/[…]/[…]

[6] Among the return dates on the back of that Information is December 3, 2014 – the date on which Mr. Quatrale was sentenced on the substantive charges.

There is no Recognizance of bail attached to that Information and the accused in this case was in custody during the trial.

III: Burden of Proof

[7] Mr. Quatrale did not testify and the defence called no other evidence. It goes without saying that Mr. Quatrale is presumed innocent unless and until he is proven guilty beyond a reasonable doubt. The burden of proof rests on the Crown and only the Crown.

IV: Brief Overview of the Trial

[8] All of the evidence, a directed verdict application and oral reasons dismissing that application took less than 2 hours of court time. The evidence was straightforward and was not challenged significantly in cross-examination. To the contrary, Mr. Jim submitted that Ms. M.D.'s evidence was in a sense overwhelming. This concession was both wise and fair. Ms. M.D. came across as a very honest and credible witness who was able to give her testimony clearly and rather dispassionately in all the circumstances.

[9] In a nutshell, she testified that she and Mr. Quatrale had been boyfriend and girlfriend several years ago when both were still in high school. They broke up, and remained friends for a short period. During their relationship and friendship, they communicated via text, Facebook and an on-line video game. They remained in contact until Ms. M.D. complained of the behavior that led to Mr. Quatrale being charged with the substantive offences. She understood that after that, he was to have no contact with her. When she received the Facebook message on November 16, 2014, she forwarded it to PC Reid, now at a Mississauga police detachment, who caused an investigation to be undertaken by local police. She identified Mr. Quatrale in court.

[10] She agreed very fairly to one of Mr. Jim's few questions in cross-examination that some of Mr. Quatrale's friends would know of some of the information that was contained in the Facebook message. In response to whether it is easy to hack through a password, she responded, "that depends."

[11] I will refer to more specifics of Ms. M.D.'s evidence below, as they relate to particular issues in dispute.

[12] PC Reid's evidence can be quickly summarized. He was present during Mr. Quatrale's arrest on the substantive charges and swore the attendant Information, which was tendered to the court as Exhibit 2. He testified that he did not arrest Mr. Quatrale on the breach or serve him with the Canada Evidence Act ("CEA") Notice. Another officer, PC Varga, executed those tasks.

[13] When I asked Mr. Jim if he had any submissions as to the admissibility of Exhibit 2 when it was tendered, he responded that it was admissible as an exhibit on the trial.

[14] Neither the Crown nor the defence sought to tender the CEA Notice as an exhibit.

V: Defence Submissions

[15] In his final submissions, Mr. Jim raised 4 issues on behalf of Mr. Quatrale.

[16] First, he submitted that the Crown was required to prove timely and sufficient notice of her intention to rely on the certified court documents contained in Exhibit 2 pursuant to ss. 24 and 28 of the CEA and that she failed to do so.

[17] Second, he submitted that the Crown did not prove the existence of a live recognizance at the time the offence is alleged to have occurred.

[18] The two remaining issues are essentially challenges to the proof concerning identity. That is, whether the accused is the man who is named in the Informations and related recognizances and whether he was the author of the Facebook message Ms. M.D. received.

[19] I propose to deal with these in the order in which I have listed them.

(A) Notice Pursuant to the CEA

[20] Mr. Jim acknowledges that the documents contained in Exhibit 2 are court documents that are under the court's seal. He does not challenge the authenticity of the court's seal, and acknowledges that if admissible, they can be relied upon by the court. There is clear appellate authority for this view: see R. v. C.(W.B.), [2000] O.J. No. 397 (C.A.).

[21] Mr. Jim's argument is that s. 28 of the CEA places on the Crown an obligation to prove timely and sufficient notice as part of its case-in-chief whenever it relies on the documentary and evidentiary provisions of the CEA regardless of whether the defence has objected to the admissibility of the document when it is tendered or given the Crown any pre-trial indication that it intends to challenge the timeliness or sufficiency of the notice.

[22] Section 28(1) of the CEA states that no certified copies (among other types of documents) shall be admitted into evidence … on any trial unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.

[23] Section 28(2) states that reasonable notice shall not be less than 7 days.

[24] On a plain reading of s. 28, two things stand out that make Mr. Jim's argument untenable.

[25] First, s. 28 is "party-neutral." That is, it applies to any party seeking to rely on the provisions of sections 23-27 of the CEA. There is no reason to believe that it operates differently when it is employed by the Crown.

[26] Second, and most importantly, it does not place on a party a general obligation to prove notice as a necessary precondition to admissibility.

[27] Mr. Jim filed a book of authorities containing 14 cases, most of which relate to issues surrounding the CEA. None of them contain authority for the proposition that the Act places a burden upon the Crown to prove timely and sufficient notice in the absence of any indication from the defence at any time until closing argument. As a result, he requested an extended lunch period to do further legal research.

[28] Mr. Jim returned with the case of R. v. Bourque, [1991] N.S.J. No. 354 (NSSC, App. Div.). He urged me to read only the first sentence of a full paragraph found at QL p. 4. That sentence reads: "The Crown has the burden of proving service of the notice and that service is in reasonable time."

[29] That sentence cannot be read in a vacuum.

[30] The very next sentence begins as follows:

After introducing the documents into evidence and no objection having been made at that time, the Crown had the right to assume, on the facts of this case, that it was accepted that service had been properly effected in accordance with s. 28 of the Act….

[31] The paragraph further indicates that

counsel conducted the defence as though the requirements of s. 28 had been met, that is, until after the Crown had closed its case. Permitting the objection after the Crown had closed its case and without hearing argument or considering whether the effect of the ruling would be a dismissal or an adjournment is not fair to the Crown. With deference, such procedure permits games to be played. Justice requires more."

[32] The case then goes on to affirm that the time for objecting to the admissibility of a document is when the document is tendered. This has also been the law in Ontario for decades. In R. v. Kutynec (1992), 70 C.C.C. (3d) 289 at 294-95, the Ontario Court of Appeal wrote:

Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested that an objection to the admissibility of evidence tendered by the Crown could routinely be initiated after the case for the Crown was closed. It is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered. ….

Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt of an accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum. In jury trials it could render the process inoperative. [emphasis added; internal citations removed]

[34] As the court did in R. v. Bourque, I find that to allow the defence to challenge the notice in this manner would lead to unfairness in this case.

[35] The second prong of Mr. Jim's argument focused on the sufficiency of the Notice. He had anticipated, wrongly as it turned out, that the Crown would tender the Notice, and a majority of the cases in his book of authorities relied on that assumption for their relevance in this matter.

[36] Once again, this issue ought to have been raised at the time the documents were tendered. If it had, proper arguments could have been made, based on the Notice itself and other potential evidence. It bears noting that the cases in Mr. Jim's book of authorities that address the content and timeliness of notice all appear to have arisen in the manner I have described: by way of a timely objection seeking a ruling or, at the very least, based on an evidentiary record.

[37] This argument is simply not open to the defence.

[38] Mr. Jim fairly indicated that court documents can be tendered pursuant to the common law without notice, subject to the court's discretion to exclude them as a matter of fairness: see R. v. Bailey, 2014 ONSC 5477. He invited me to do so by arguing that Exhibit 2 contains two recognizances, and that the Crown had not provided notice as to which one was allegedly breached on November 16, 2014.

[39] This argument has no merit. There is no potential to be misled or confused as to the case to meet.

[40] This case does not involve a multiplicity of live recognizances or other complications. It involves one recognizance that was marked "vacated" and replaced by a second one on September 16, 2014 – that is, prior to the alleged breach.

[41] The documents contained in Exhibit 2 were properly admitted at the time they were tendered and remain evidence in this trial.

(B) Existence of a Live Recognizance

[42] R. v. C.(W.B.), and R. v. Bailey, both cited above and R. v. Ali, [2011] O.J. No. 5950 (C.J.), make it plain that the court can take judicial notice of its own process, properly tendered at trial. The documents in Exhibit 2 were properly admitted into evidence. They contain a recognizance that was alive at the time of the alleged breach. That recognizance attaches to the substantive information, and prohibits the individual it binds from communicating with M.D.

[43] I have no doubt that there is a recognizance before the court that bound a Jordan Quatrale from September 16 to December 3, 2014.

[44] Also, I have no doubt that the Information alleging a November 16, 2014 breach relates to that same Jordan Quatrale. Aside from the fact that it refers to M.D., multiple and unequivocal similarities are evident on the face of the documents in Exhibit 2, which I have detailed above. For the sake of clarity, I mention some of them again.

[45] The name "Jordan Quatrale," which appears on each of the documents, is spelled the same way.

[46] The same birth date also consistently appears on the documents as does the surety Diane Quatrale and address of R[…] Avenue, Brampton On.

[47] Added to that address is the mention of a basement, following the September 16 bail variation, which, in turn, also features on the Information currently before the court.

(C) Identity

[48] The issue surrounding the evidence of identity has two facets.

(i) Is the man who sat in the prisoner's dock during the trial the Jordan Quatrale who was bound by the recognizance attached to the substantive Information and later charged with breaching that recognizance?

[49] I have no doubt that the prisoner who was arraigned and tried before me is the same Jordan Quatrale who was named on the substantive Information, the recognizances and the Information alleging the breach.

[50] In coming to this conclusion, I am mindful of the fact that the court documents in this case, standing alone, do not prove identity beyond a reasonable doubt. This is evident from the authorities Justice Bovard discussed in R. v. Ali, cited above.

[51] As Justice Bovard wrote at para. 51, an evidentiary link between the court documents and the accused before the court is required.

[52] In this case, Ms. M.D.'s testimony and PC Reid's constitute links in an evidentiary chain that begins when Ms. M.D. dated Mr. Quatrale in high school and ends with her identification of him as he sat in court. During the intervening time, Ms. M.D. complained of extortion and sexual assault, Mr. Quatrale was arrested by PC Reid, charged with extortion and sexual assault and released on a recognizance. The recognizance prohibited him from having contact with Ms. M.D. He was charged with breach of recognizance on November 16, 2014. He was sentenced for the substantive offences on December 3, 2014 and, on that same date, the current Information was before the court.

[53] The clear and unambiguous facts of this case make it plainly distinguishable from those in R. v. Ali, which Justice Bovard characterized as "a hodgepodge of vague and imprecise hearsay statements" that did not tend to show that the accused before the court was the person subject to the recognizance in question.

[54] In addition, Ms. M.D., who knows the accused well, knows him as Jordan Quatrale. The identity of his name and the name appearing on the court documents is, itself, some evidence of that he is in fact the person named in those documents: see R. v. Longmuir [1982] O.J. No. 119 (CA) at para. 8. That said, I hasten to add that in this case, I place little weight on this fact. First, Jordan is a common name in Canada. Second, while the name Quatrale appears to me to be quite unusual, it is difficult to say so with any degree of certainty in a multi-cultural community such as Brampton.

(ii) Did Jordan Quatrale Send the Facebook Message?

[55] Mr. Jim submits that I should have a reasonable doubt that Mr. Quatrale sent the November 16, 2014 Facebook message to Ms. M.D. He relies on the possibility that one of Mr. Quatrale's friends, who knew some things about his situation, hacked into his Facebook account and sent the message.

[56] In a circumstantial case such as this, I am required to ask myself whether an inference of guilt is the only reasonable inference available on the primary or essential facts. Those essential facts, of course, must be proved beyond a reasonable doubt. Put another way, I am required to consider whether there are alternate inferences available on the whole of the evidence which are capable of raising a reasonable doubt: see R. v. Garciacruz 2015 ONCA 27.

[57] Ms. M.D. explained the features of the Facebook message that made her believe it was written and sent by Mr. Quatrale. They are the following:

It was sent from the Facebook account she had known as Mr. Quatrale's for years prior to November 16, 2014;
She subsequently visited the page, where she saw a photograph of herself and Mr. Quatrale;
The message referred to their high school relationship;
It accurately named their respective schools;
It accurately mentioned activities they took part in together;
It mentioned the outstanding substantive charges;
It mentioned the anticipated sentencing date of December 3, 2014; and
It accurately quoted Ms. M.D. as having said "I'm not your girlfriend" and "I don't care."

[58] I would also point out that the message mentions the anticipated jail sentence a number of times and, at page 8, contains a reference to the fact that it is in itself a breach.

[59] I am satisfied that these facts constitute proof beyond a reasonable doubt that Mr. Quatrale communicated with Ms. M.D. in the November 16, 2014 Facebook message. I am not left in a state of reasonable doubt by the theoretical, if not speculative, possibility that his account was hacked by a friend who then sent the message surreptitiously. In my view, such an inference is not available on the facts of this case and the context in which it arose.

[60] I therefore find Mr. Quatrale guilty as charged.

Released: February 25, 2015

Signed: Justice P. F. Band

R. v. Quatrale, 2015 ONCJ 101

Case Summary