Court Information

Date: May 4, 2017

Court File No.: 2811 998

Ontario Court of Justice

Her Majesty the Queen v. M.R.

Before: The Honourable Justice M.S. Felix

Location: Oshawa, Ontario

Appearances

Counsel for the Crown: K. Kennedy

Counsel for M.R.: D. Barrison

Heard: In Writing

Publication Ban: Ban on Publication Pursuant to s.486.31(1) of the Criminal Code of Canada

Judgment

FELIX, J: JUDGMENT (Orally):

I. Introduction

[1] M.R. is charged with criminal harassment, contrary to s.264(1) of the Criminal Code of Canada (Criminal Code), and distribution of intimate images, contrary to s.162.1 of the Criminal Code arising from the circumstances surrounding a relationship with the complainant.

[2] The defendant and the complainant were in a relationship for several months in 2015. In May 2015, with the consent of both families, they were engaged to be married. In keeping with their religious and cultural practices, both sets of parents were involved in the discussions, terms and arrangements concerning an engagement and prospective marriage.

[3] By September 11, 2015, the relationship was over.

[4] Thereafter, the prosecution alleges that the defendant criminally harassed the complainant primarily by persistently conveying electronic communications to her notwithstanding her clear position that she did not wish any further contact. The defendant's position is that they agreed to remain friends and that many of the communications, if not all, were not directed at the complainant.

[5] On October 2nd, 2015, a number of the complainant's friends and family received an anonymous email including an intimate image of the complainant. On November 14, 2015 the complainant's father received another anonymous email with intimate images of the complainant, his daughter. The complainant had provided several intimate images to the defendant during the summer months of 2015. This conveyance was in electronic form. The prosecution alleges that the defendant, as the sole recipient of these intimate images, was the true author of the anonymous emails and committed the offence contrary to s.162.1 of the Criminal Code. The defendant denies that he was responsible.

[6] The trial in this case rests upon the analysis of the following series of events, circumstances, and pieces of electronic evidence interwoven with credibility findings:

(a) The bedroom incident on August 3, 2015;

(b) The circumstances surrounding the compromise of the complainant's school-related "Blackboard" software, school email, and Facebook account commencing on August 10, 2015;

(c) The circumstances surrounding the complainant's written appeal of her academic suspension from school and the conveyance of an "anonymous email" to her academic advisor alleging she committed fraud;

(d) The content of WhatsApp text messages between the complainant and the defendant from August 27, 2015 through August 29, 2015 (See Exhibit 22 filed by the defence in this case);

(e) The defendant's admitted receipt of intimate photos;

(f) The circumstances surrounding the alleged posting of intimate photos of the complainant on the website Reddit in early September 2015;

(g) The circumstances surrounding a meeting between the complainant and the defendant at a Go Train Station on September 11, 2015;

(h) The content of text messages sent by the defendant to the complainant between September 23rd and October 7th, 2015 (See Exhibits 4 and 5);

(i) The content of WhatsApp status updates and broadcast messages posted by the defendant;

(j) The circumstances surrounding the dissemination of an intimate photo and other material to the complainant's family and friends on October 2nd, 2015; and,

(k) The circumstances surrounding the dissemination of intimate photos to the complainant's father on November 14th, 2015.

II. The Bedroom Incident

[7] The decline in the relationship began with an incident on August 3, 2015 that caused a serious conflict between the complainant's family and the defendant's family.

[8] The defendant and the complainant were present in her bedroom and found by her father. The ensuing dispute was because the complainant's father's version of events and the defendant's version of events were in conflict.

[9] The complainant testified that she knew that the defendant was highly sensitive to this issue as he explained it would get him in trouble with his parents. The defendant asked her to maintain a particular position and support his version of what happened that night. He told her that he was concerned that if the truth came out, his parents would be disappointed and kick him out of the house. The defendant told the complainant that something similar had happened concerning his brother and as a result his brother had to leave the family residence.

[10] While I acknowledge that the August 3, 2015 incident provoked a serious conflict between the two families, I am obliged to make clear that it is not this Court's role to make specific findings as to what factually happened. Nor is it the Court's function to determine fault concerning the breakdown of the relationship. It is not the function of this Court to resolve this source of conflict or determine who is right or wrong about this particular incident.

[11] Further, given the particular circumstances of this case, the Court should make it clear that although I have a deep respect for religious faith, the fact that a witness engages in religious observance is legally irrelevant to the Court and the Court may not permit religious considerations to unduly impact the decision in this case, absent a relevant evidentiary framework: (See R. v. Shafia, 2016 ONCA 812 at paras. 240-241).

[12] In the end, the only relevant factor arising out of the events of August 3rd, 2015, was that it provoked a serious conflict between the two families and signalled the beginning of the end of the relationship between the complainant and the defendant.

III. The Compromise of the Complainant's Accounts

[13] Commencing on August 10th, 2015, the complainant noted difficulties accessing her Blackboard account (a school-related program used to access her courses and school calendar), school email and Facebook account.

[14] Someone had accessed her Blackboard account which contained her school-related information. Someone had logged in and changed her password in Facebook thereby locking her out of her account.

[15] While the Court is not permitted to rely on the hearsay information provided by the complainant concerning the results of the examination of her computer, there was no testimony or evidence that there had been unauthorized access (e.g. hacking) in relation to her computer.

[16] This evidence was important in that only the defendant had been provided with access to the complainant's social media accounts, her email, and her Blackboard account. He had also assisted her with various applications and as such had her student number, O.S.A.P. related I.D. numbers, and other miscellaneous pieces of personal information.

[17] The defendant confirmed this peculiar and unique access to her accounts during his testimony.

IV. The Complainant's Academic Appeal, the Anonymous Email, and WhatsApp Communications from the End of August, 2015

[18] The complainant was academically suspended from school in 2015 due to her poor performance.

[19] She appealed for leniency and re-instatement by composing a letter of appeal and sending it to her academic advisor after final exams sometime in early September 2015.

[20] The complainant informed the defendant of these circumstances in general but did not vet the letter with him prior to filing it with her academic advisor.

[21] On September 8th, 2015, the complainant was contacted by her academic advisor and there was a meeting. During the meeting, the academic advisor showed the complainant two anonymous emails -- one sent to the academic advisor and one allegedly sent to the defendant. At this meeting, the complainant was shocked to learn about the emails. She was further disturbed by the revelation that the defendant had communicated directly with her academic advisor, had left a voice mail, and had attended the education institution with the purpose of meeting with her advisor without her knowledge or consent.

[22] The defence position is that the complainant lied in her academic appeal letter about the status of the relationship with the defendant. It is submitted that the complainant was concerned that by directly contacting her academic advisor the defendant might expose this lie. Further, she was not straightforward with the defendant about the preparation of the letter or its contents. Finally, the defence position is, if it is true that the engagement was off in the complainant's mind at the time of filing this letter, she was not forthright and truthful to the defendant about her decision and state of mind. While the defence properly concedes this issue is collateral to the criminal allegations, it is submitted that it is probative of her credibility.

[23] To a certain extent, I agree with the defence position on this issue.

[24] While I accept the complainant's testimony that the relationship was rocky and there was ambivalence and vacillation on her part concerning the status of the relationship, the cross-examination on this issue exposed credibility issues.

[25] First of all, it is obvious that the letter she wrote was for the purpose of seeking a sympathetic approach from the educational institution. She cited the break-up of the relationship in order to bolster the merit of her appeal.

[26] Second, the complainant testified in court that at the time she wrote the letter, in her mind, the relationship was over notwithstanding that she had yet to convey this to the defendant. She maintained this position until skilfully confronted by Mr. Barrison, defence counsel, with certain WhatsApp text communications covering the end of August 2015. (See Exhibit 22 sourced from the defendant's case and not part of Crown disclosure).

[27] It was clear that the complainant sought forgiveness from the defendant for the content of the academic appeal letter and that her position was that she embellished the contents.

[28] It is also important that if in fact the relationship was over in the complainant's mind, the communications in Exhibit 22 were a perfect time and opportunity to tell the defendant that the relationship was over. Yet, she conveyed the exact opposite sentiment.

[29] Furthermore in court during her testimony, the complainant did not readily accept the contents of the text messages filed by defence counsel. At first she asserted that she did not have a clear recollection, then she said that some of the content did not resemble the way she communicates (e.g., Refer to her testimony about the use of the word 'cuz' instead of 'because') thereby impugning the veracity of these communications. She also disputed the fact that she was seeking a sympathetic review from the academic advisor.

[30] Finally, the complainant testified that a friend of hers had also prepared a similar appeal letter and then, while under cross-examination on this issue, revealed for the first time that her mother proof read the letter.

[31] While I might easily accept the complainant's ambivalence about the relationship, and I do suspect that this was the true state of her approach to the relationship at this time. And, I might even accept her reticence to disclose her views to the defendant. Her testimony in court demonstrated mild deception.

[32] This evidence and testimony had an impact on my assessment of the complainant's credibility.

[33] I agree with the defence submission that the complainant tried to downplay her dishonesty in the letter to her academic advisor. This state of affairs caused me to hold a moderate reservation about the credibility of the complainant.

[34] Keeping in mind that context is all important, this issue was largely collateral to the merits of the criminal allegations. It nevertheless signalled to me that I should carefully examine the complainant's evidence and look for some level of corroboration of the complainant's testimony.

[35] Of note, this issue was also probative of credibility issues concerning the defendant.

[36] The defendant testified that he attended the complainant's educational institution and sought out her academic advisor for a singular reason -- a concern that the anonymous hacker who was targeting the complainant, and had compromised her accounts, might also be targeting him. He testified that he was unconcerned about the content of the complainant's letter, vis-à-vis, the academic advisor. He was simply concerned about the potential penetration of his electronic world by the author of the anonymous email. When he allegedly received an anonymous email directing him to the complainant's academic advisor, he wished to speak with her only about the author of the anonymous email and how that person could have obtained his email address. Finally, the defendant testified quite melodramatically, I would say, that the fact that the anonymous email author possessed his email address, posed a threat to his life. I repeat -- a risk to his life.

[37] This evidence from the defendant was incredible and unbelievable.

[38] First of all, the anonymous delivery of an email to the complainant's academic advisor had no connection to the penetration of his electronic world. He had not been targeted. No one was accessing his accounts without authorization.

[39] Second, the complainant's academic advisor would not have been able to assist him with why or how an anonymous person obtained his person, much less mitigate a perceived risk to his life.

[40] Third, someone of his educational background understood that the email was sent by way of a website that promotes anonymity. In such circumstances, it was unlikely that the academic advisor would be able to shed light on the source of the email.

[41] Fourth, I find it curious and unlikely that some anonymous email hacker, author would care about the contents of the complainant's academic appeal enough to email the defendant directly urging him to contact the complainant's academic advisor. It is also incredible that this anonymous person was concerned enough to provide him with the name of the complainant's academic advisor and her contact information.

[42] Fifth, the defendant did not inform or consult with the complainant prior to making these efforts. The defendant testified that he still loved the complainant at this point, yet he did not take any steps to notify her about the email he says he received. If his recount was true, this was a serious escalation or progression in the compromise of her personal privacy, yet he did nothing to notify her. If he viewed this simple acquisition of his email address by an anonymous hacker, author to be a risk to his life, why not have that concern for the complainant he claimed to still love? She was the focused target of this anonymous author -- not him.

[43] The simple truth was that the defendant was understandably hurt and upset about the complainant's betrayal. That she lied to her academic advisor about the status of their relationship. His direct testimony on point emphasizes the fact that he was upset and insulted by the complainant's duplicity.

[44] His attendance and attempted meeting with the academic advisor was a rather transparent attempt to notify the academic advisor of the complainant's deceit. The object was to cause difficulty for the complainant. He did not think that she should get away with this sort of conduct.

[45] The email allegedly directing him to contact the academic advisor, (Exhibit 23), provided him with an excuse to speak to the complainant's academic advisor. Otherwise, his involvement in the issue might appear vengeful and retaliatory.

[46] This largely collateral issue provided insight into the credibility of both the complainant and the defendant.

[47] But it was also telling in that the objective of the defendant mirrored to some degree the apparent intent of the anonymous author of the email. A straight forward read of his email to the academic advisor, and the anonymous email, leaves no question that the object was to cause difficulty for the complainant by alleging fraud in her academic appeal.

[48] A review of the email reveals that the anonymous author possessed information that only the complainant and the defendant knew, on the record at this trial, such as the time-frame when the letter was filed. This fact is compounded by the self-serving email urging him to get involved and contact the academic advisor.

[49] It is most likely that the defendant was involved in the creation of these emails either directly or indirectly. But frankly, I cannot, and need not settle this issue definitively.

[50] The probative value of this collateral issue ended up providing the Court with a basis to be cautious with the complainant's evidence. But, it was also probative of the defendant's intent, credibility, and state of mind.

V. Possession of Intimate Photos of the Complainant

[51] Both the defendant and complainant testified that during the summer months of 2015, the complainant sent numerous, intimate images of herself to the defendant.

[52] Some of these photos have been filed as exhibits in this trial, and there is no question, and I should note it is not contested amongst the parties, that these photos meet the definition of intimate images, defined in s.161.1(2) of the Criminal Code.

[53] The complainant conveyed photographs via her laptop using Facebook Messenger. She also subsequently conveyed photos via her smart phone using WhatsApp.

[54] The prosecution theory is that some of the intimate images provided by the defendant were ultimately sent via "anonymous email" to numerous friends and family of the complainant on October 2nd, 2015, and to her father on November 14th, 2015.

[55] Defence counsel submits there are several crucial problems with the complainant's evidence on this issue. First of all, the complainant's evidence that she deleted the photos was contradicted by her evidence that she was concerned about access to the photos during the time her Blackboard and other associated accounts were compromised. This means that the photos were still possibly on her laptop and available to a hacker. Second, it is argued that the complainant never really suspected the defendant was implicated in the distribution of her intimate images. For example, when the defendant told her about his discovery that her intimate photos were posted to Reddit (an issue I will deal with substantively in a moment), she did not confront him as the sole recipient of the photos.

[56] I do not accept these arguments for several reasons.

[57] First, I accept the complainant's evidence that she only sent intimate photos to the defendant.

[58] Second, the third party or anonymous hacker suspect theory has not been developed in this trial.

[59] Third, I find that the intimate images the complainant sent to the defendant were received by him.

[60] Fourth, I disagree with the argument submitted by the defendant, in general. The complainant testified that she deleted the photos after sending them to the defendant, and I accept this evidence. Further, the argument misses the point that photos were sent from both her laptop computer and her smart phone.

[61] Furthermore, in reviewing the record of this proceeding, I did not interpret the complainant's testimony on October 6, 2016 as supportive of the assertion that she was concerned about access to intimate photos in August of 2015. Notwithstanding she deleted them. When I consider the entirety of her evidence, I do not find that the complainant expressed a concern about access to photos at that time. She did express a concern that the person who had accessed her Blackboard account, school email and Facebook account, was potentially also the person who sent the anonymous letter to her academic advisor.

[62] The complainant knew that the defendant possessed her credentials to access her Blackboard, email and Facebook accounts. Initially in August 2015, she was not concerned about the intimate photos because she had deleted them after sending them to the defendant.

[63] Her concern about the intimate photos and their current availability arose in early September 2015, when the defendant communicated to her that her intimate photos were allegedly on the Reddit website. It is then that her concern was crystallized in that she knew he was the only one who received her photos, and he was the only one who had access to all of her accounts and credentials. She did not view this as coincidental.

[64] In coming to this realization, the complainant testified that she had doubts and concerns about the defendant, but she did not want to believe them. She also testified that she did raise the issue with the defendant, indirectly, in that she spoke to the defendant about the fact that only he possessed access to all of her credentials, but she did not confront him directly. I believe this evidence.

[65] Considered within the context of a rocky relationship, and her perception that it was touch and go as to whether the relationship would endure, I do not find it incredible that she failed to immediately confront the defendant as the source of photos being distributed, particularly when, as I will address in a moment, she could not find any evidence on Reddit immediately after being notified by the defendant.

[66] Finally, the defendant's testimony on this issue disclosed serious problems with his credibility.

[67] The defendant sought to distance himself from the intimate photos grounding the prosecution's case by initially testifying that he had never seen the photos before. He testified that the complainant sent him approximately 50 or 60 intimate photographs, but he had never accessed the photographs. Instead, he testified that he immediately deleted such photographs and counselled the complainant that some things were forbidden by their religion.

[68] I do not believe the defendant's evidence on this point for several reasons.

[69] First of all, the defendant testified initially that he never opened the photos that he received. This testimony, I find, was calculated to erode the strength of the prosecution theory that he, and only he, received the photos from the complainant, and that the photos before the Court were part of that subset of photos that were sent. When skilful cross-examination by the Crown pointed out the obvious inconsistency, (How can you say definitively that you never received the intimate photos filed as exhibits in court, when you say you never opened the photos?) -- the defendant's testimony faltered. He devolved into a tortuous explanation involving the preposterous contention that his specialized forensic education in IT security and training, furnished him with a peculiar ability to see pixilated images in thumbnail form. His position was that when the complainant sent him an intimate photo, this ability allowed him to merely delete the photo without actually examining it. When he was pressed further on this issue, he changed his evidence again, and said that he sometimes opened the photos accidentally.

[70] Secondly, the defendant during his testimony sought to present himself as a sort of pious individual receiving unwanted material from the complainant, his fiancé. He testified that he didn't view the photos, and he counselled the complainant that such practices were forbidden by religion. But, I do not believe this is what actually occurred. The photos were sent some 50 or 60 times within a time span of a few months. The testimony in this court was May 2015 to July 2015 approximately, according to the defendant. This suggests a very frequent occurrence and belies his stated approach to the issue.

[71] Why are there no electronic captures of his admonitions to the complainant? His counselling? Why did he respond by sending pictures of his face? For that matter, why are there no messages with him simply sending a photo of his face? Again, why are there no messages with the defendant counselling the complainant to stop this practice because it is forbidden?

[72] If this was truly happening without his consent and participation, I think there would have been a more fundamental conflict in their relationship, centred around her unwillingness to cease sending forbidden material to him. Instead, this practice continued for several months, until the August 3rd, 2015 incident wherein the defendant was found within the complainant's bedroom. That incident provoked a conflict, but not her fundamental unwillingness to follow his direction not to send him photos.

[73] I do not believe that the defendant was the unwilling recipient of the images sent to him by the complainant.

VI. The Alleged Posting of Images on Reddit and the Go Train Meeting

[74] Whatever ambivalence present at the end of August 2015, it is clear that the relationship was definitely over by September 11, 2015.

[75] In early September 2015, the defendant communicated electronically to the complainant that he had happened across intimate photos of her on the internet website Reddit. There was a subsequent meeting between the two a few days later at a GO Train station on September 11, 2015, where a definitive end to the relationship was clear. I find that the complainant communicated that there should be no further contact or communication.

[76] The defendant asserts by way of submission that the complainant never confronted him with her suspicion that he had posted the photos to Reddit at the September 11, 2015 meeting, and this is harmful to her credibility.

[77] I did not find this to be significant for several reasons.

[78] The complainant testified that once the defendant communicated to her that her intimate photos were Reddit, her suspicions crystallized into a conclusion that he must be responsible because he was the only person who received the intimate photos, and he possessed all of her credentials and passwords for her Blackboard, email and Facebook accounts. As I noted, she did in fact confront him with her view that he sent the anonymous email to her academic advisor. And I note parenthetically, that the defendant confirmed that she did so in his testimony.

[79] Further, the complainant accessed the Reddit website immediately upon his electronic notification to her and did not locate the photographs. In her mind, it seemed highly improbable that the Reddit website and photographs contained therein disappeared so fast, if they had, in fact, been posted.

[80] Finally, the complainant testified that when they met in person at the Go Train station on September 11, 2015, part of the discussion involved the defendant threatening to reveal her intimate images to her parents if there was further questioning about what happened the night of August 3, 2015 in her bedroom, as I have already addressed earlier in this judgment.

[81] Separate and apart from my acceptance of the complainant's evidence on this issue, the credibility of the defendant was severely impacted by the cross-examination in this area.

[82] First, to provide necessary context, during the defendant's testimony, he prominently and frequently fell back on some self-proclaimed experience and education in the IT technology security area. In fact the defendant at times testified to specialized instruction and training in forensic IT security technology. His self-professed expertise was inescapable as he waxed on about the particulars associated with the WhatsApp application, and frequently corrected counsel on the functioning of that application.

[83] It was therefore concerning to hear the defendant's recount of how he says he encountered the complainant's photos on Reddit. He claimed that pursuant to his educational program, he was responsible for conducting some security audits on-line on various individuals. The rationale being that if one's name came up on various websites via an internet search one would take steps to remove the information by de-registering from certain websites, for example. The defendant says that he was conducting such online security audits on various family members when he just happened to decide to input the complainant's name.

[84] The defendant testified that amongst the first returned results was a Reddit page. It is interesting that the Reddit page returned result itself did not immediately admit of a connection to the complainant's name, yet he clicked on that returned link, and immediately found a Reddit webpage with many intimate photos of his former fiancé. It was startling to hear this evidence from someone who professed relevant IT security technology expertise. In this modern age, anyone with even a passing familiarity with Google searches would question that evidence. Almost any sentient person in our society knows in a general sense, that page rank returns on Google are generated by a complicated revenue-driving enterprise, combined with a proprietary algorithmic ranking of the interest associated with a particular website. In layperson's terms, a site's placement within results is driven by interest and the number of persons connecting to that site.

[85] Second, while there is no burden on the defendant (and I should note parenthetically I should not expect this from every witness), but someone who describes themselves as a computer IT security student with some level of forensic training, would have a mind for maintenance or retention of the relevant electronic documentary record.

[86] The defendant did not document his discovery on Reddit in any way. The defendant with his particular background, knows that there exists a historical record of pages on the internet, that are accessible even after the pages are altered or removed. This defendant, with his professed IT security background, would know this yet he did not secure this evidence.

[87] Third, in a similar vein, the defendant claims that he notified the Reddit site immediately of the offending material, yet he has not produced that record either.

[88] Notwithstanding his incredible evidence in this area, I am obliged to temper the weight accorded this issue and be cautious because of the evidentiary record placed before me, the absence of evidence, and the limits of judicial notice.

[89] But, these considerations are nonetheless troubling, when I contrast the defendant's approach to the Reddit photos with his evidence as to his stated mindset when addressing other issues in this case. For example, recall that when he attended the complainant's educational institution, in August 2015, with respect to her academic appeal letter, he testified that his purpose was to investigate the unknown, anonymous hacker. He testified that the person who targeted the complainant, could also target him. In that circumstance, he took steps to maintain the record. He forwarded the email that he had received to the complainant's academic advisor. Yet this concern for the forensic record appears absent with respect to a startlingly alleged escalation perpetuated by an anonymous hacker, by posting intimate photos on line. Consider as well that the defendant accessed, retained, and produced certain electronic communications involving the complainant, found in Exhibit 22. Communications that I found very helpful and important. So, the defendant has demonstrated within the four corners of this trial, his thought process and his ability to maintain relevant records.

[90] All of this being said, the most probative evidence on this issue is the evidence of the complainant. She immediately checked the Reddit website upon electronic notification by the defendant and nothing was there. There was no delay from his communication to her that the photos were posted as this occurred via his electronic status update. When she immediately accessed the website, she could not find the photos. This is surprising given the defendant's evidence that her webpage on Reddit was so easily accessible, apparently moments earlier, by merely inputting her name into a Google search engine.

[91] I do not believe the defendant's evidence about conducting random security audits on-line concerning family members.

[92] I do not believe the defendant's evidence that he saw intimate photos on Reddit.

[93] I am not convinced that there were ever any photos on Reddit.

[94] I do not believe he told the truth to the complainant.

[95] And, on this issue, I do not believe he told the truth to the Court.

[96] The Reddit episode was obviously informed by his wish to cause harm and suffering to the complainant.

VII. WhatsApp Text Messages (See Exhibits 4 and 5)

[97] An objective review of the text messages contained in Exhibits 4 and 5, display a one-way, one-sided communication directed towards the complainant via the WhatsApp application.

[98] I accept the testimony of the complainant that as of September 11, 2015, it was made clear to the defendant, that there should no longer be any contact. I do not believe the defendant's testimony that the complainant emphasized that they should remain friends, and that she never told him to stop communicating with her. The complainant's testimony in court is corroborated by the content of the text messages during this time period where the defendant himself acknowledges that the complainant will no longer communicate with him: (See for example, September 29, 2015 at 11:15 a.m. or September 30, 2015 at 11:59 a.m.)

[99] During his testimony the defendant did not dispute that he authored these messages.

[100] No rational, sensible person could read those messages and fail to conclude that the communications are concerning. Many, if not most of the communications, are non-sensical ramblings. One could literally, randomly select any of these text messages and there is no rational or logical point: (See for example, the detailed recount concerning laundry soap on September 30, 2015 or the messages concerning armies and a captured queen on October 2nd, 2015 at 8:39 p.m.)

[101] The content of the messages, the repeated nature of the communications, these were unwanted communications, leads to a firm conclusion that the singular purpose in repeatedly communicating such nonsense in such a manner was to harass or annoy the complainant.

[102] The simple act of sending these unwanted communications with seemingly no purpose in some of them, with no encouragement or request from the complainant, could properly ground the stated subjective fear articulated by the complainant given the context of the break-up of the relationship, and ultimately, the circumstances concerning the distribution of intimate images to her family.

[103] Layered on top of these harassing communications were examples of communications designed to suggest that the defendant was watching the complainant: (I will address that a little more in a moment, but see for example September 29, 2015.)

[104] There is no question in my mind, that this conduct alone properly grounds a conviction for criminal harassment. The complainant's fear and concern was amply supported by this objective record.

VIII. The "WhatsApp" Status Updates and Broadcast Messages

[105] During the time frame of the criminal harassment allegation, the complainant preserved certain WhatsApp communications emanating from the defendant.

[106] The defendant's testimony about these status updates serious compromised his credibility. He contorted and manoeuvred, twisted and turned to avoid any conclusion that his communications were directed at the complainant.

[107] For example, Exhibit 3 contains a status update concerning the return of gifts related to the failed engagement and marriage. The last part of the message says: "...Disgusting humans shouldn't exist." The defendant initially acknowledged that this message was directed to the complainant during direct examination in a straight-forward manner. Frankly, one might forgive him for expressing deeply felt emotion. Remember, he had been betrayed by the complainant by her conduct in relation to the appeal letter. A reasonable person might accept an explanation that he was upset and his emotions dictated that unfortunate and unkind reference.

[108] Instead, during cross-examination, the defendant resiled from this admission, and sought to explain that the inclusion of three periods before the impugned comment meant that it was a totally different message. He then went on with his incredulous explanation and testified that the reference was to a video game.

[109] Exhibit 11 is a status update wherein the defendant communicated: "Orange-ish Hijab and grey sweater" on September 29, 2015. The complainant captured the status update because she was concerned that the defendant was stalking her. She was indeed wearing the clothing referenced in the status update that day. She also, I should note, received a direct text message from the defendant -- (See Exhibits 4 and 5) during the same time period which says in part, "...Were you wearing a yellow, orange-ish bright Hijab with your famous Reebok sweater or a grey one at least? If not, oops, sorry, random and awkward. Yes, I know you won't reply."

[110] The defendant testified that this was a broadcast message. It is important to understand that this is distinct from status update messages. Broadcast messages, as he explained, involve selecting particular persons to receive the message. The defendant testified that he did in fact send this message, but it was broadcast to a group of friends that happened to include the complainant. He denied that it was directed towards the complainant in particular. He claimed to have broadcast this message to five people. Then, he changed his testimony and said it was actually intended for Paul, his friend, who was sitting right beside him in class, and that they were always joking around. He then went further and explained that he had seen the back of a head of someone that day, and wondered if it was one of his friends, and that was the rationale for the message. He reasoned that if it was one of his friends, they would reply. If it was not, no harm done.

[111] There is simply no way to infuse this part of his testimony with any semblance of logic or common sense.

[112] Frankly, I will decline to go on and on recounting the defendant's tortured, after-the-fact justifications and explanations, including that his messages were referencing T.V. shows, or some unrelated woman's make-up, or the reference to a combination of his nickname and the complainant's nickname, indicated upside down in one of the posts, is due to his use of a different language keyboard. The record is clear, and should there be a reviewing court one day, it can go through and carefully examine that record. I am going to decline to go on and on about it. Suffice it to say, I categorically reject his litany of explanations as untrue.

[113] There are a few probative conclusions derived from this area of evidence, combined with the evidence overall. First of all, there is no doubt that the defendant knew that the complainant did not wish him to contact her as of September 11, 2015. As I have addressed elsewhere in this judgment, the one-way, unsolicited text messages, contained in Exhibits 4 and 5, by themselves ground criminal harassment. Second, the defendant through his communications documented the fact that he was aware of this state of affairs by referencing several times that he knew the complainant would not reply. Third, while there is no direct evidence that the defendant was, in fact, actually stalking the complainant, the communications about her clothing were timely and accurate and supported a subjective fear held by the complainant with respect to this conduct.

[114] I have briefly considered one factor not explicitly referenced by the defence on this issue.

[115] After September 11, 2015, the complainant could have removed the WhatsApp program or at a minimum removed or blocked the defendant as a contact. This was the simplest way to avoid the harm occasioned by his communications. But, when I consider the complainant's testimony, and I consider the context of the circumstances, she testified that she was concerned about his state of mind, and his conduct, and she said that she maintained a view of his status and documented it on occasions by saving screen captures because of that concern. When I consider the context of all of the circumstances in this trial, I cannot conclude that her conduct was unreasonable. Given the circumstances, in particular, the bombardment of one-direction text messages emanating from the defendant, I found the objective records provided some limited support for the complainant's vigilance.

IX. The Dissemination of Intimate Images on October 2, 2015 and November 14, 2015

[116] On October 2, 2015, an email was sent from an email anonymizer service called GuerillaMail to a variety of persons associated to the complainant. Attached to the email was an intimate image of the complainant, and the contents of a Facebook discussion involving the complainant and a friend discussing her ex-boyfriend: (See Exhibit 8).

[117] On November 14, 2015, the complainant's father received an email with an offensive subject containing three intimate image captures of the complainant: (See Exhibit 14).

[118] Based on the evidence at trial, and the submissions of counsel, the following conclusions are not controversial:

(a) The images in question meet the definition of "intimate image": See s.162.1(2) of the Criminal Code;

(b) Dissemination via email based on the facts in this case falls within the definition of "...publishes, distributes, transmits, sells, makes available..." as set out in the provision s.162.1(1) of the Criminal Code;

(c) The complainant did not consent to the distribution of the intimate images;

(d) The defence outlined in s.162.1(3) is not at issue in this trial; and,

(e) Recklessness is not a relevant fault consideration based on the record at this trial.

[119] The singular issue to resolve is identity -- who distributed the photos.

[120] I am satisfied beyond a reasonable doubt that the defendant distributed those photos.

[121] This conclusion may be illustrated by a number of probative features of the evidence concerning the distribution of the intimate images on October 2, 2015 including:

(a) I believe the complainant's testimony that the defendant was the only person who received the intimate photos and that she deleted the photos from her computer and phone once they were sent;

(b) I accept that some of the intimate photos before the Court were a part of the subset of photos sent by the complainant to the defendant;

(c) I repeat that the defendant possessed all of the necessary credentials and access to the complainant's electronic applications including her Facebook account; and,

(d) The email distribution list demonstrated particularity in the selection of persons closest to the complainant:

i. Her father

ii. Her sister

iii. Her eldest sister

iv. Her mother

v. The defendant

vi. The defendant's father

vii. Family friends of the complainant's father

viii. The son of those family friends

ix. The complainant's mother's cousin

x. The complainant's mother's cousin's husband

xi. The complainant's father's brother-in-law who resides overseas

xii. And, two cousins of the complainant who reside overseas; and,

xiii. The complainant's ex-boyfriend.

This particular list of individuals bespeaks peculiar knowledge of the complainant and her family that the defendant had access to. For example, the defendant possessed information concerning the defendant's ex-boyfriend, as I accept the testimony of the complainant that he required disclosure of the relationship because, "...if he found out later it wouldn't end well."

(e) The magnitude of the preponderance of the coincidence that this email distribution list would randomly include only important family and friends of the complainant rather than, (for example), perhaps many others in an electronic address book.

(f) The magnitude of the preponderance of the coincidence that the author of the email would have the correct contact information for all of the parties involved.

(g) The fact that the author of the email noted specifics about the identity and relationship of some of the persons to whom the email was sent.

(h) I believe the complainant's evidence that on September 11, 2015 at the GO Train station, the defendant threatened to release the complainant's intimate photographs.

(i) The defendant possessed the details and credentials necessary to access the complainant's social media applications including Facebook.

(j) That means he could access the product contained in the third attachment, a Facebook conversation between the complainant and a friend concerning her ex-boyfriend.

[122] With respect to the distribution of the three intimate images to the complainant's father on November 14, 2015, the person who sent it had the correct email address for the complainant's father and spoofed the sender's email address to include peculiar information, specifically, the date of birth of the complainant's father.

[123] Resting on this foundation that I have described, is the most probative evidence that documents the gentleman before the Court, his involvement in sending these messages. That evidence emanates from him; a series of text messages sent by the defendant to the complainant proximate in time to the email that was sent on October 2, 2015.

[124] In this series of text messages sent to the complainant, the defendant demonstrated that he possessed peculiar information concerning the timing and content of the dissemination emails concerning the intimate photographs:

(a) October 2, 2015 at 6:37 p.m.: the defendant referenced the complainant's nickname 'Bubbles' and further: "Also, there is bad news, but oh well 'Happy face' you would have already heard about it so no point right...?";

(b) October 2, 2015 at 8:48 p.m.: The defendant texted the complainant: "Why is this person sending more emails about you?" and went on to reference his believe that the complainant was preserving his messages;

(c) October 3, 2015 at 7:45 a.m.: The defendant communicated: "Even dad got an email.";

(d) October 3, 2015 at 7:53 a.m.: The defendant texted: "I guess all these people got the email. Who are the last three?";

(e) October 3, 2015 at 7:54 a.m.: I have edited the names because of the publication order. He references one name in the email, "..."...is related to "...?"'; It is important to note that those two names were contained in the distribution email.

[125] So these text messages, overall, display a pervasive, ongoing stream of unsolicited, harassing nonsense directed by the defendant to the complainant.

[126] But, in particular, the slender references buried amongst the mountain of text messages that he sent to her, make it abundantly clear that the defendant had some insight into the content of the October 2nd email, and the fact of the email having been disseminated.

[127] As I pointed out, to be absolutely specific, the message on October 3, 2015 at 7:54 a.m., makes specific reference to the seventh and ninth persons on the email distribution list contained in Exhibit 8.

X. Credibility and the Criminal Burden of Proof

[128] The core task of a criminal court is to determine whether the prosecution has proven the allegations beyond a reasonable doubt.

[129] A criminal court is required to analyze all of the evidence with a view to balancing the context of the circumstances. Common sense and experience are available to a trial judge when assessing the evidence and making credibility determinations.

[130] It is not the Court's purpose to embarrass or demean the defendant or the complainant. The Court has a duty to dispassionately explain the rationale for conclusions reached.

[131] This is a case where the Court's opportunity to observe the complainant and the defendant testify was crucial to making relevant credibility determinations. As such, I was required to set those determinations out clearly.

[132] The Supreme Court of Canada's guidance in R. v. W.D. provides instruction on how the credibility determinations impact the criminal burden of proof.

[133] A criminal trial is not simply a contest of credibility between the Crown witnesses and the defence witnesses. This is an inappropriate erosion of the presumption of innocence and the criminal burden of proof.

[134] I found the defendant to be an intelligent, articulate, respectful and polite gentleman. I accept his evidence concerning the magnitude of the hurt and betrayal felt by him when the complainant's appeal letter was revealed. But, on the issues that matter in this trial, I largely rejected his evidence as calculated, contrived and untrue.

[135] Where the defendant presented himself as having specialized IT security abilities based on experience, education and technical knowledge, in my respectful view, the Court is entitled and indeed required to examine and consider this evidence carefully and critically.

[136] The defendant's testimony in court was very damaging to his credibility. While he answered questions from defence counsel smoothly and clearly, he did not perform in this matter when the Crown Attorney asked him difficult questions. At times he was inexplicitly obtuse. His viva voce evidence often conflicted with an objective plain reading of the objective evidence filed as exhibits in this trial, such as the contents of communications. He provided bizarre and convoluted explanations, rather than simply conceded obvious conclusions.

[137] In the end, the defendant's credibility was so damaged, that I did not believe him on the core issues in this case, and his evidence could not reasonably support a doubt in my mind.

[138] With respect to the third branch of the Supreme Court of Canada's guidance in R. v. W.D., there were several considerations including credibility of the complainant, motive, and the guidance of another Supreme Court of Canada case: R. v. Villaroman, 2016 SCC 33.

A. Credibility of the Complainant

[139] I had mild to moderate concerns about the credibility of the complainant in this case. Indeed, I rejected certain aspects of the complainant's evidence. However, upon consideration, the circumstances surrounding her deceptive appeal letter was not core to the determination of the criminal allegations before the Court. Furthermore, her evidence at large on the core allegations was careful, cautious, and corroborated at times by the objective record. It is also important that the material aspects of her evidence was even corroborated by the testimony of the defendant.

[140] There is no question that it was difficult for the complainant to testify in the open court concerning these matters. Nonetheless, I found her evidence to be clear. She articulated short, responsive answers to questions, from both the Crown Attorney and defence counsel.

B. Motive

[141] There is ample evidence in this case upon which to conclude the defendant had a motive to commit the offences before the Court.

[142] While motive is not an element of either offence before the Court, it is relevant and admissible circumstantial evidence given the identification issues in this case: R. v. Lewis, [1979] 2 S.C.R. 821, 10 C.R. (3d) 299; R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373.

[143] The defendant possessed abundant motive in this case given:

(a) The complainant's hurtful and untrue betrayal in her composition of the academic appeal letter;

(b) The complainant's refusal to lie in support of his version of events concerning the August 3, 2015 bedroom incident;

(c) The fact that the complainant was less than straight forward or transparent about her views of the status of the relationship; and,

(d) The overarching circumstances of the demise of their relationship.

[144] Evidence of the defendant's animus pervades this case, particularly in the objective evidence emanating from him via his electronic communications.

C. Circumstantial Evidence

[145] I have considered the application of the principles set out in R. v. Villaroman, 2016 SCC 33.

[146] The alternative anonymous hacker theory is devoid of any realistic foundation in this case.

[147] The combination of the objective circumstantial evidence in this case, and the credibility assessment, provides a clear pathway for the confident conclusion that guilt is the only reasonable conclusion in this case. There is no inference consistent with innocence arising from the evidentiary record or any other source.

D. Disposition

[148] My role is not to decide a credibility contest between the evidence of the complainant and the defendant, but to consider the case overall, and determine whether the criminal burden of proof has been met by the prosecution's case.

[149] There is no question in my mind that the defendant disseminated the intimate photos in this case. I do not have a doubt based on his evidence or any of the evidence in this case.

[150] With respect to the criminal harassment allegation, for the reasons outlined in this judgment, I am similarly satisfied beyond a reasonable doubt that the defendant wilfully harassed the complainant.

[151] Stand up please, sir. I find you guilty of both counts before the Court. You may be seated.

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Jodi J. Hewett, C.V.C.R. certify that this document is a true and accurate transcript of the recordings of Her Majesty the Queen v. M.R., in the Ontario Court of Justice, Oshawa, Ontario taken from Recordings No. 2811_104_20170504_090216_10_FELIXMA.dcr made by Jessica Bell-Jackson (Cheryl Boyd), Court Monitor, on the 4th day of May, 2017 which has been certified in Form 1.

Date: ________________________

Jodi J. Hewett Certified Verbatim Reporter

Legend:

• (sic) - Indicates preceding word has been reproduced verbatim and is not a transcription error
• (ph) - Indicates preceding word has been spelled phonetically

THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED

Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Jodi J. Hewett, Certified Court Reporter.

Transcript Ordered: May 4, 2017

Transcript Completed: May 11, 2017

Transcript Released: May 19, 2017