Ontario Court of Justice

Date: 2018-06-07

Court File No.: Central East - Newmarket 4911-998-17-01921

Between:

Her Majesty the Queen

— AND —

Jordan Cardona

Before: Justice P.N. Bourque

Counsel:

• T. Hamilton for the Crown
• M. Polisuk for the Defendant

Reasons for Judgment

Released on June 7, 2018

Overview

[1] A young woman attending a Dollarama store in Richmond Hill on February 24, 2017 believed that the defendant had placed his cell phone between her legs and had taken a picture up her skirt. The defendant is facing charges of voyeurism, mischief and breach of a common law peace bond to keep the peace and be of good behavior.

Evidence of the Complainant

[2] The complainant is 19 years of age. She was in the Dollarama store with a friend. She had gone to the candy aisle to purchase some items, but at the cash, found out she could not use her credit card. She returned to the aisle to return the candy. While there she felt the presence of someone close by and looking down saw the defendant kneeling near her with a brown box on his knee. With his free hand, he was withdrawing a cell phone from behind and between her legs. She was wearing a skirt which came down above her knees. She saw that it was screen side up but the screen was off. She assumed that it had just been turned off and she believed that the person had just taken a picture up her skirt. She described the phone as a black iPhone 6. She had no conversation with the defendant.

[3] She stated that she left the aisle and saw the defendant (whom she identified "in dock") leaving the other end of the aisle. She went to her friend and they decided to call 911 rather than just speak to the manager.

[4] She went into the vestibule area and called the police whom came some 10 minutes later. She said that while waiting, she saw the manager looking at his phone and looked at her several times. She believed that he was looking at a picture that may have been sent to him by the defendant.

Terrance Gibson

[5] Terrance Gibson is the manager of the store. He identified the defendant as an employee of the store on February 24, 2017, although he stated that the defendant has not returned to work since that day. He stated that he believed the defendant had a white iPhone. He stated that the company has a computerized "time card" system. The system showed that the defendant punched in at 11:00 a.m. that day, but he did not punch out. He stated that the police came (he believed it was between 1:00 and 2:00 p.m.), but admitted it could be later. He said that after speaking to the police, he looked for the defendant but could not find him in the store. The witness did not see him leaving the store. He said there was a back entrance to the store, but it was controlled by a coded lock and the defendant did not have the code.

Jason Macedo

[6] Jason Macedo is a 3-½ year veteran of the York Regional Police. He responded to the call from the complainant and he arrived at the store at 4:01 p.m. He stated that he spoke to the complainant and eventually took a statement from her. He stated that he spoke to the store manager and got the address and phone number of the defendant. He looked through the store but he did not find the defendant.

[7] The officer eventually got advice from the CIB and at 7:02 p.m., he went to the defendant's address. There was no answer at the door. He called the number and heard a woman's voice but the phone was hung up quickly. He waited near the apartment and noticed a woman go into the apartment. The officer knocked at the door and a woman answered and identified herself as the mother of the defendant. She said he was not home. She said that he did not have a cell phone and she had a black android phone. The officers waited and she called the officers at 10:05 p.m. to state that the defendant had come home about an hour earlier. The officer found this to be a problem as he and his partner had kept watch and no one had gone to the apartment. The officer attended the residence and arrested the defendant at 10:19 p.m. At the time of arrest, the officer seized a white iPhone 4 from the defendant. At the time of the searching of the defendant at the station, the officer also seized a device which could remotely operate the camera on the iPhone.

Search of the Phone

[8] The phone was eventually searched by the police. There was no photograph of the complainant found, and certainly nothing that would indicate it was taken in the circumstances that she describes. In addition, the police opined that "It is highly unlikely that a photograph of Ms. S. was taken, deleted, and not recovered given the short passage of time".

Analysis

[9] As there was no picture discovered on the defendant's phone, an offence cannot be made out under section 162(1)(c) unless it falls under the rubric of an "attempt".

If the offence as charged (count 1) is not proved, can the defendant be found guilty of an attempt?

[10] The definition of an attempt is contained in s. 24 of the Criminal Code reads as follows:

24(1). Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

[11] Section 662(1)(b) provides that a person may be convicted of an attempt where the substantive charge is not proven.

[12] The question to be decided is whether I am satisfied that based on all of the evidence that the defendant had the necessary mens rea to commit the offence, and whether the actions of the defendant go beyond preparation and actually constitute an "attempt" to commit it. The attempt must go to not only the actus reus of the offence but to the mens rea as well. As stated in many cases, there is no clear line that can be drawn between mere preparation and an attempt. The application of the distinction to the facts of a particular case must be left to common sense judgment.

[13] In this case, the Crown points to the evidence of the complainant and says that she said that the phone was "between her legs". However, the phone was not on when she looked down. She did not hear him approach (she gave no evidence as to whether or not he was already in that position), did not hear the sound of any click and certainly saw no flash. None of those things are necessary for the act to have been carried out, but their lack does not assist the Crown's case.

[14] With regard to the complainant's evidence, I accept that she was convinced that the defendant either had, or was in the process of attempting to take a picture up her skirt. However, I also note that when she saw the manager later looking at his phone, she was convinced that he was looking at a picture of her that had been sent to him by the defendant. That was clearly a farfetched assumption.

[15] The Crown also points to the evidence that the defendant was perhaps running away from the store and indeed hiding when the police came to his home. This is possible but the very contradictory nature of the evidence given by the store owner makes it impossible for me to come to a conclusion on that. Did he simply leave without punching his time card? Did he not return simply because he was charged?

[16] Was he in the home when the police came? None of this can be known with certainty. As such I am not sure that I can do much with this evidence.

[17] The defence points to the fact that there was no image found on his phone and "It is highly unlikely that a photograph of Ms. S. was taken, deleted, and not recovered given the short passage of time". The Crown counters this by saying that the defendant had (when he was arrested) a device to operate his phone by a Bluetooth remote switch. The defence however points out that when the complainant saw the defendant, he had a phone in one hand and a box in the other. There is no evidence that he even had that blue tooth device on his person when he was working in the store.

Conclusion

[18] To be successful, the Crown must prove all the elements of the offence (including the elements of an attempt) beyond a reasonable doubt. The physical location of the parties certainly points to the potential that this was an activity that the defendant was contemplating. Unfortunately, for the Crown, I cannot say that the totality of the evidence points further than there being a possibility that this is what the defendant was planning to do. I do not fault the young woman for fearing that this was, in fact, happening. She had a legitimate fear that her personal integrity was being compromised.

[19] Based upon all of the evidence, I cannot say that I am convinced beyond a reasonable doubt that the Crown has proven the essential element of an attempt to commit an offence under section 162(1)(c), and I must therefore find the defendant "not guilty" of this offence.

[20] I believe that this doubt under the offence under section 162(1)(c) would also extend to count 2 on the information and I also find the defendant not guilty of the offence of mischief.

[21] As I have found no offence under count 1 and count 2, the offence of disobey a court order by failure to keep the peace and be of good behaviour also fails and I dismiss it.

Released: June 7, 2018

Signed: Justice P.N. Bourque