WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2020-01-29

COURT FILE No.: Brampton 18-13747

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CLAYTON WILLIAMS

Before: Justice N.S. Kastner

Heard on: March 11, 12, 13, 14, 15, 21, 28, June 21, Sept. 5, and Oct. 31, 2019

Reasons for Judgment released on: January 29, 2020

Counsel:

Ms. Cindy Nadler — counsel for the Crown

Ms. Paula Rochman — counsel for the accused Clayton Williams

KASTNER, J.:

Introduction

[1] In the early morning hours of September 2, 2018, when the majority of people would be sleeping, two break-ins allegedly occurred within less than 900 metres of each other in a residential area in Brampton.

[2] In one break-in, on J[...] Court, a window beside the back door was broken, and the intruder unlocked and opened the back door and stole electronic technology items from the first floor, including two iPads, chargers and a speaker system. The burglar left dirt prints on the wall of the stairway upstairs annexed to the bedroom level, and in the study room where the iPads were charging. These marks appeared to be made by gloved hands.

[3] Shortly before 1:00 a.m. at the J[...] Court home, a young mother in her thirties, C.V., her husband and her fifteen-year-old daughter had been cleaning and dancing in their kitchen. None of the back windows had blinds, curtains or any form of window treatment. They would be visible to anyone at the back of the home. While most of the family slept, the mother stayed up and did laundry for a time, moving between the master bedroom and the laundry room. All six children and her husband were asleep. The break-in occurred after 1:00 a.m. and before 9:00 a.m.

[4] At 1:08 a.m. a man can be seen on home surveillance at the corner of J[...] Court walking in the direction of C.V.'s home.

[5] The break-in on J[...] Court is not contested. The main issue is the identity of the perpetrator.

[6] The J[...] property is fenced and gated. A chair pushed against the back fenced yard at J[...] suggests the burglar left by way of the back fence. The back of the J[...] residence backs onto N[…] Drive.

[7] In the other break-in, on M[…] Street, the intruder allegedly entered through an unlocked back patio door, and a young girl was allegedly sexually assaulted in her bedroom. The encounter and rapid exit were at approximately 3:30 a.m.

[8] The backyards on M[…] Street also border N[…] Drive.

[9] The defence challenges whether the Crown has met their burden to establish both a break-in on M[...] Street beyond a reasonable doubt, and the identity of the intruder.

[10] Both homes were not on a main thoroughfare but were more secluded – one on a small court, and the other on a corner of a small street at a hedged property.

[11] Both homes were visible from a busier street, N[…] Drive. Both of their backyards were backed by that street, but on a kitty-corner angle across from each other.

[12] Both homes did not have alarms or video surveillance, but their neighbours did. Police seized copies of the video surveillance of several homes on M[…] and one home on J[…].

[13] The police identified Mr. Williams as a possible suspect and conducted surveillance of him for several days. They also got a tracking warrant on his cellular telephone and motor vehicle.

[14] On October 13, 2018, in the evening, Mr. Williams was tracked to J[...] Court. His vehicle remained on that street for a little over half an hour (38 minutes). Video surveillance from homeowners on J[...] suggests that Mr. Williams left walking north toward N[…] Drive and returned to his vehicle from a southerly opposite direction. He had left before police arrived, but an officer identified him operating his vehicle a short time later, in a location between J[...] and his residence.

[15] Peel Regional Police obtained and executed a search warrant on November 16, 2018 at a premises surveillance had disclosed was Mr. Williams' home. He had not reported his address as required by a SOIRA order made in 2015.

[16] There the police seized all of the electronics, identified by their serial numbers, from the J[...] Court residence, and other items which included shoes similar to those seen to be worn by the alleged intruder to the M[…] residence.

[17] The defence called no evidence on the trial, and Mr. Williams did not testify.

[18] Some of the testimony is set out at length in two prior rulings in this case: R. v. Williams, 2019 ONCJ 442 (Leaney voir dire); and R. v. Williams, 2019 ONCJ 619 (Search and Charter s. 8 Ruling). I will avoid repetitive references where possible, as these form part of the trial.

[19] Counsel asked for the Court to indicate the final verdicts, with the reasons to follow, on Oct. 31, 2019. This was, in part, so that counsel could book a sentence hearing. These are my reasons.

The Charges

[20] Mr. Clayton Williams is charged that:

(1) On or about the 2nd day of September 2018 at the City of Brampton in the said region did break and enter a certain place, to wit: dwelling house, situate at X1 M […] Street and did commit therein the indictable offence of sexual assault contrary to section 348(1)(b) of the Criminal Code of Canada.

(2) On or about the 2nd day of September 2018 at the City of Brampton in the said region did commit a sexual assault on M.A.H. contrary to section 271 of the Criminal Code of Canada.

(3) On or about the 2nd day of September 2018 at the City of Brampton in the said region did for a sexual purpose touch M.A.H. a person under the age of sixteen years directly with a part of his body contrary to section 151 of the Criminal Code of Canada.

(4) On or about the 2nd day of September 2018 at the City of Brampton in the said region without reasonable excuse, failed to comply with Form 52 to comply with the Sex Offender Information Registration Act to wit: Failed to report change of address contrary to section 490.031 of the Criminal Code of Canada.

(5) On or about the 2nd day of September 2018 at the City of Brampton in the said region did break and enter a certain place, to wit: dwelling house, situate at X1 J[...] Court and commit therein the indictable offence of theft contrary to section 348(1)(b) of the Criminal Code of Canada.

(6) On or about the 2nd day of September 2018 at the City of Brampton in the said region did steal a quantity of personal items, the property of C.V.D. of a value not exceeding five thousand dollars contrary to section 334(b) of the Criminal Code of Canada.

(7) On or about the 16th day of November 2018 at the City of Brampton in the said region did unlawfully have in his possession property 2 iPads, Bose speaker, iPhone charger, of a value not exceeding five thousand dollars knowing them to have been obtained by the commission in Canada of an indictable offence contrary to section 354(1)(a) of the Criminal Code of Canada.

Issues

[21] The main issue in this case is the identification of the person or persons who committed these break-ins, if a break-in occurred, at either or both residential properties.

[22] The Crown applies to admit similar fact evidence, or other discreditable conduct evidence pertaining to Mr. Williams' criminal record for criminal offences he was convicted of in 2012 and 2015 for indecent act, and break, enter and commit sexual assault. The defence strongly resists the admission of this evidence both with respect to identification, and proof of actus reus.

[23] Credibility and reliability of the complainant at the M[…] Street break-in is also at issue.

[24] Lastly, the third issue is knowledge and control of the property seized at the accused's residence. This issue was not strenuously litigated, although not conceded.

The Video Surveillance Evidence

[25] The Court has had the benefit of the footage of video surveillance of several properties on M[…] Street and on J[…] Court. It is fair to say that the footage is not clear from all the cameras, either by its focus or lighting or angle or type of night coverage.

[26] One of the video clips is quite clear, from X2 M[…] Street.

[27] It was admitted that the time stamp on the surveillance recorded on each camera was reasonably accurate.

[28] As the Court stated in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 42, the inferences sought to be drawn must "accord with common sense, intuitive notions of probability and the unlikelihood of coincidence".

[29] It is a reasonable inference that the M[…] Street camera views were all of the same male person, regardless of their clarity. Objective reasonable grounds to believe this was the same person include the direction of travel; the body movement co-ordinance; the place he was traversing the house frontage right up by the garage doors and front windows rather than by the sidewalks or curtilage; and most importantly, the time the cameras were recording.

[30] Each video camera along M[…] Street recorded the street view from approximately 03:26 a.m., separated by seconds and fractions of seconds.

[31] The surveillance videos are very important to the Crown's case, as circumstantial evidence of identity. Other recent appellate cases review examples of when such videos and still photographs produced from them form subjective and objective reasonable grounds to believe that the identity of a perpetrator is the offender.

[32] In R. v. Fiddes, 2019 ONCA 27, a pharmacy was broken into. The trial judge relied upon the officer's evidence of recognition, the surveillance evidence, the evidence of a building superintendent, a pharmacy employee and various police officers involved in the appellant's arrest and the execution of the search warrant, and found the appellant guilty of the offences with which he was charged:

On appeal, the appellant argued …that he was not identified at the scene of the crime.

We did not accept these submissions. The appellant did not testify at trial. The evidence before the trial judge supported a finding of break, enter and theft and confirmed the appellant's identity as the perpetrator of the break-in. The findings of guilt on the other offences were supported by evidence of items found in the appellant's possession. We therefore dismissed the appellant's conviction appeal.

[33] Another example is the case of R. v. Srun, 2019 ONCA 453. The restaurant did not have a video surveillance system, but several cameras were installed at different locations around the mall: "Some blind spots exist but much of the activity that take place in the corridors is captured by the cameras":

A central feature of the evidence adduced at trial was a three-minute segment recorded on various surveillance cameras throughout the mall, as well as a series of still photographs taken from the videos showing the appellant's involvement. The appellant is clearly visible because of the distinctive white shirt and baseball cap he was wearing that evening.

Within 10 seconds, the appellant struck the first blow in the direction of the deceased and Kim. Beer spilled on the floor. The appellant and deceased moved out of camera range.

[34] Even though the critical footage of the homicide was out of camera range, sufficient camera footage was available to identify the assailant.

[35] A video may be of such a poor quality, that identification cannot be made out on the standard of proof of a criminal trial. The Court has considered that the quality or view of each of homeowners' cameras is not the same, and that some of them are clearer than others. They are relevant and admissible, however, in these circumstances. The weight to be given is for the trier of fact.

Break and Enter – M[…]

[36] The allegation is that a male person broke into the residence at M[…] Street. It is alleged that the burglar entered a closed but unlocked patio door at the rear of the residence when all the residents had gone to their rooms or fallen asleep for the night.

[37] Section 350 of the Criminal Code of Canada provides that:

For the purposes of sections 348 and 349,

(a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and

(b) a person shall be deemed to have broken and entered if

(i) he obtained entrance by a threat or an artifice or by collusion with a person within, or

(ii) he entered without lawful justification or excuse by a permanent or temporary opening.

[38] Therefore, any entrance in the manner alleged would be a break-in contrary to this statute.

[39] Whether the M[…] Street home was broken into that night is very much in dispute. Ms. Rochman argues that a number of factors tend to indicate that there was no break-in, and that the complainant is mistaken, either prevaricating for attention or believing it to be true, but raise a reasonable doubt.

[40] The Crown argues that circumstantial evidence tends to confirm the complainant's narrative, and that the Court ought to accept her evidence beyond a reasonable doubt.

Evidence of M.A.-H.

[41] The house at X1 M[…] Street is owned by the father of M.A.-H., I.A. It is a back-split style residence. Her mother lives elsewhere, but not too far away in the same city. Her grandmother lives in the basement which is one level down from her bedroom. Her older sister lives on the basement level also but was not at home that night. Another sister lives there and remained asleep on the same level upstairs as the bedroom of her brother, R.A.-H.

[42] That night her father fell asleep in the living room chair on the main level. He was in a deep sleep and did not wake to the sound of the sisters scolding the dog for messing up her room and putting him in his crate, nor other very loud noises on his street just outside his residence.

[43] M.A.-H. was thirteen years old at the time and was alone in her bedroom on the lower level of the split-level house. It is about eight steps away from the rear sliding glass patio door which leads out to the backyard of the residence. That door was not locked. She had retired there late in the evening, into the early morning hours.

[44] She went to bed, with her back to her bedroom door, and was watching some video on her cellphone when the incident happened at approximately 3:30 to 4:00 a.m. Her bedroom door had been closed, but not firmly. It could be pushed open.

[45] She did not hear the door open but saw a hand on the door edge and the door opened. She was startled and frightened by an unknown "bald" black male masturbating in her bedroom. He was wearing a black zip-up sweater. He approached her, and she moved away from him on the bed and covered herself with a blanket. He pulled the blanket off her and touched her vagina over her clothing.

[46] She got off the bed and fled out of her bedroom upstairs to where her father was sleeping, and she woke him up and told him what had happened.

[47] Video surveillance footage from a neighbour's residence captured a bald looking male walking around the area of that residence at 3:26 a.m., coming from the direction of X1 M[…]. The male can be seen walking southbound between the front of the car and the garage, and appears to be checking over his shoulder and possibly holding something as he crosses over the lawn and walks around a hedge toward the street.

Evidence of R.A.-H.

[48] R.A.-H. was a high school student living at his mother's house, but also staying at his father's house on M[…] Street at times. That night he went to a party and decided to stay at his father's place which was closer to the event.

[49] R.A.-H. told police in his s. 715.1 statement that he came home to his father's house around 11:30 or 12:00 that night. His father was asleep on the living room chair. His father did not wake up even though the dog barked when he knocked at the door.

[50] When he arrived home, he went straight to his room.

[51] R.A.-H. was oblivious to what was going on in the house. He was in his upstairs bedroom with earphones on talking to his girlfriend on his phone on Facetime. Even when there was a great deal of noise outside close by his side of the house on the road, he could not hear it. His girlfriend asked him what all the noise was, and he then looked out his window and saw three people outside arguing loudly. Eventually one of them left, and the other two, a man and a woman, called a taxi to leave. The police had arrived and were dealing with the situation. One man got into a taxi and left with a girl.

[52] He looked down from his window and saw a bald man standing directly below, just outside his sister M.A.-H.'s window, below his own window. He assumed it was his father, and assumed his father had called the police.

[53] It was a bad angle. He believed the man was wearing a dark zip-up hoodie which was unzipped.

[54] He was not sure what his race was, but when his sister mentioned he was black he thought that "made sense".

[55] He believed the man's build was a bit over average and that he was about 5'10". He believed him to be completely bald, because the light was shining off his head.

[56] He testified that he assumed it was his father even though his father's hair is different and is thinner than the man, because "he didn't want to assume the worst, that someone was sneaking around his house".

[57] He agreed that the exterior glass door in the back is usually kept open because it makes a loud noise. He testified the rear sliding glass doors were kept unlocked.

Evidence of I.A.

[58] I.A. worked extra hours at his job on September 1st. He was extremely tired and fell asleep in the living room chair. This is the same level as the front door, where R.A.-H. entered that evening. That noise did not wake him. He did not hear what was going on in the house from the time he went to sleep until the time his daughter M.A.-H woke him up, saying that there was a stranger in the house.

[59] He did not hear his son come home, other noises in the home, nor the ruckus on the street in the early morning when police had attended.

[60] He testified that the outer sliding door in the back did not have a lock mechanism on it, but that the door was kept closed. He could not say if the exterior door was open or closed when he went to sleep that night.

[61] He said the interior glass door in back was kept closed, but his dog was able to open it if the exterior door was not closed.

[62] He was woken up by his daughter M.A.-H around 3:00 or 3:15 a.m. He was in a deep sleep.

[63] M.A.-H said, "Dad, somebody's in my room. Dad, dad, there's a man in my room". She sounded concerned and frightened. She was shaking and her eyes were welling up. She was looking at him to do something.

[64] He described his daughter as an introvert, someone who did not want everybody knowing about her issues.

[65] When he went outside with his dog, the dog was zigzagging on the lawn, which he did not normally do. He noticed the back gate by M.A.-H's and R.A.-H.'s bedrooms was open, which was not usual.

[66] He did not recognize the bucket which was below M.A.-H's window, although it could be his. He did not place it there and had no idea who put it there.

[67] I.A. described his daughter's demeanour changed after that date, and she was "very 'into herself' and he couldn't touch her or hug her".

Analysis

[68] M.A.-H. was a very good witness. She was thoughtful and really tried to listen to the questions posed and answer truthfully. She was emotive when describing the actual contact that night, and highly embarrassed. This is not atypical of a shy teenage girl. I am mindful that demeanour is to be given very little weight in the overall assessment of a witness' evidence. To the extent it does have any weight, M.A.-H. appeared credible.

[69] She was very consistent in her testimony before the Court.

[70] She did not remember clearly all the details of the incident, but she clearly remembers the core of what she says happened to her, and what the man was doing to himself. The fact she did not know her exact position on the bed when the blankets were yanked off does not detract from her evidence.

[71] She denied that she was dreaming in cross-examination. She testified, "I know what I saw and I know what happened. It is not possible".

[72] She had one small inconsistency between her testimony and her statement provided to the police shortly after the event. She originally told the officer she was watching "That 70s Show" on her cellphone. On the day of her preparation meeting with the Crown and in her testimony, she said she actually was watching something pornographic on her phone. She was too embarrassed to tell the male police officers that, who were dealing with her that night, or anyone for that matter. She appreciated her duty to tell the whole truth in her sworn evidence in Court. Her explanation is reasonable, particularly for her age, and does not detract from her overall credibility.

[73] The Court accepts that M.A.-H's evidence stands in contrast to her father's evidence in some respects. The main discrepancy is whether the back patio doors were left open or unlocked on the night of September 2nd.

[74] The Court gives less weight to I.A.'s evidence about his usual manner of locking the back patio door. I.A. was in a deep sleep that night. He did not even make it up to his bedroom before he fell asleep. He did not wake to many types of noise, which included his daughters cooking, yelling at the dog, crating the dog mere feet away from him, his son returning home and entering the front door with all the noises of the dog and the children etc., and the incident on his street with police attendance involving some loud men.

[75] I.A. was very difficult to wake, even when his daughter M.A.-H. was upset and shaking him.

[76] The children who testified both said the back inner patio door was closed but left unlocked. The back door was used to let the dog in and out, and it was convenient. I accept their evidence on this point.

[77] The outer patio door was unable to be opened easily as it was off its tracks and all witnesses said made a lot of noise to open. Both M.A.-H. and R.A.-H. testified they always left it open.

[78] When the police came, the doors were photographed as is. The outer door was open. The inner door was closed and unlocked.

[79] I find the doors were in that configuration at the time the house was entered.

[80] I.A. initially was disoriented on waking. He could not figure at first out why the dog had not barked if there was an intruder. I accept his evidence at trial that the dog would not bark because he had been disciplined and put into his crate and would not disturb his master in that instance.

[81] Some time went by before M.A.-H. called 911. This was because her father got the dog, went into the lower level and basement to look around, went outside and walked around the house, and generally did his own cursory investigation.

[82] Virtually immediately, M.A.-H. wanted to call for help and was frustrated her father did not do so right away.

[83] The Crown did not prove affirmatively in this case the absence of any motive to mislead. The Crown submits that that the complainant did not have motive to mislead and argues in substance that the absence of a known motive to mislead adds to the weight of her testimony: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23. This reasoning is not permissible: R. v. M.B., 2011 ONCA 76, 267 C.C.C. (3d) 72, at paras. 30-32. Reasoning in this way undermines the presumption of innocence by reversing the burden of proof and fails to recognize that motives to mislead can be hidden: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 312, at paras. 16, 44, and R. v. S.H., 2020 ONCA 34, at para. 11.

[84] The Crown argues that since she does not identify her attacker, it is contrary to common sense to make up the assault, since people may lie to affect someone they know. Ms. Nadler also suggests her insistence to involve authorities seems contrary to any ill motive.

[85] All that can be said is that there is nothing to suggest she had a motive to mislead, rather than proof of an absence of motive.

[86] Any suggestion that her evidence was fabricated, or the product of a hallucination is rejected as speculative and without foundation. M.A.-H. is a very shy and quiet young girl. It was her idea to call the police, and she was upset no one was acting. She would never bring the authorities to the home, to be subject to intrusive and embarrassing interviews had the events not occurred.

[87] The evidence of M.A.-H. tends to be corroborated by or supported primarily by the video surveillance on M[…] Street about the same time that she indicated she ran upstairs, since it depicts a "bald" male coming from the direction of her house, looking over his shoulder, and quickly crossing the homes up by the garage and front lawn.

[88] Other circumstantial evidence supporting her is the presence of the upside-down plastic bucket on the ground just under her window, which no one had seen before at that spot, or anywhere. This is consistent with someone watching or trying to watch at that window.

[89] R.A.-H.'s evidence of a bald male at his sister's window at about 2:45 a.m. also supports, in part, M.A.-H's description of her attacker. It also suggests that man was lurking outside her window about forty-five minutes, or more, before the attack.

[90] I do not rely on R.A.-H. adopting the description that the man he saw outside was black. All that can be said is that he agreed when he later heard his sister say that, indicating that "sounds right".

Sexual Assault

[91] M.A.-H. had her back to her bedroom door watching video on her phone.

[92] The attacker suddenly appeared in M.A.-H's bedroom doorway. The door was half-opened and he was peaking his head in, with one hand on his exposed penis.

[93] She did not hear the back door open, or her room door open. It would not have made noise unless it hit the closet, but he was holding onto it.

[94] She testified when he walked further into her room, she inched to the corner of the bed with the stuffed animal, "balled up, scared" and holding her knees to her chest. She pulled her blanket up to protect herself below her eyes. She was in shock.

[95] M.A.-H described being grabbed over the clothes in her vaginal area while the intruder's other hand remained on his exposed penis.

[96] Specifically, she said that he yanked off the blanket and whispered, he "touched me in my thing" for one second with significant pressure, he was massaging his penis throughout; his pants were on but his penis was out.

[97] The time was "3:30 to 4:00ish".

[98] She got up very fast and ran away. She immediately ran upstairs when he touched her and woke up her father in the living room to get assistance.

[99] M.A.-H. had to hit her father and tap him to tell him to wake up. It took about two minutes for him to wake up. She said, "Get up, get up. There is a person in the house. He touched me."

[100] What she told her father is not tendered for its truth. It is part of the sequence of events leading up to the 911 call.

[101] The act of making the statement was part of the complainant's distressed reaction to the events that had happened shortly before. The fact she made that statement was admissible as part of the narrative and properly before the court. I do not rely upon the statement made for the truth of its contents, or for its consistency with subsequent statements.

[102] Her father finally woke up and went downstairs to see. He appeared only half awake. M.A-H. kept telling him to call 911. He then put on his shoes and went out the back door to check. He brought the dog with him.

[103] On the 911 call, the complainant was audibly upset and crying.

[104] The photos clearly show a young girl's bedroom, complete with a large stuffed animal on the bed.

[105] M.A-H. described her attack as "close to being rape".

[106] As to the actual events within M.A.-H.'s room, there is no evidence to the contrary. I use this phrase as in R. v. Caporiccio, 2017 ONCA 742, where the Court of Appeal stated, at para. 30:

While on a few occasions the trial judge references the fact that there with as "no evidence to the contrary," taken in context this expression does not reveal a reversal of the burden of proof. At no time does the trial judge suggest that she accepts evidence because there was no evidence to the contrary. Instead, in using the impugned expression, she is simply signalling that there was no evidence contradicting certain pieces of evidence that she accepted as true. There was nothing wrong with making this observation. [Emphasis in original]

[107] At the police station, she asked her father for money for she and her sister to get their nails done before starting school that week. She did not remember saying that, and agreed it was a strange thing to say.

[108] This was not significant in all the circumstances and does not raise a reasonable doubt as to the allegation occurring. The submission that such a request meant the incident did not happen or that M.A-H was attention seeking, does not carry any weight, as it is based on assumptions on what a typical victim of such an offence would do or say. One might find that it is not unusual for someone to want to put a traumatic event behind them, and focus more on the future, the start of the new school term.

[109] I accept the complainant's evidence primarily because of the independent home security video showing a stranger moving quickly from the direction of her house at the very time she was reporting the assault. I can also rely on the fact her brother saw someone standing outside her window earlier that night, the unexplained large construction bucket under her window, and her believable and credible evidence.

[110] I find that the back gate at the house was latched but unlocked, and the back sliding patio exterior door was open, and the back glass patio interior door was not locked.

[111] The Court accepts her evidence and is not left in doubt by it. Looking at the totality of the evidence, there is no doubt the conduct amounted to a sexual assault, unwanted touching of the young complainant without her consent in an area violating her personal integrity of a sexual body part, in circumstances of actual or attempted sexual gratification.

[112] All of this occurs while the offender was gratifying himself by masturbating. This constitutes fulfillment of the Crown's burden of proof, subject to being able to prove identity of the perpetrator beyond a reasonable doubt.

Break and Enter – J[...] Court

[113] The fact of a break-in at the J[...] Court address was admitted at trial. This is a sensible and objectively-based conclusion founded on the evidence of a slit screen on a window adjacent to the back door, which could then be unlatched, dirty prints on the wall of the iPad room and the stairway up to the bedrooms, and the removal of property.

[114] I accept the viva voce evidence of C.V., which was tendered in addition to the agreed facts.

[115] She had multiple windows open that night because she enjoys fresh air. The home was completely visible at night from the back when lights were on, since they had no blinds on the new windows. The window by the back kitchen door was open, with a screen.

[116] C.V. went to bed after the rest of her family. Her daughter and husband were with her until approximately midnight or 1:00 a.m. She had gone upstairs sometime after 1:00 a.m. but stayed up doing laundry until approximately 1:40 a.m.

[117] It is to be noted that C.V. was a meticulous housekeeper, proud of her new renovation and the clean white walls. She was also preparing for a family party the next day, and to show off her renovated home. C.V. noticed the "handprints" and pointed them out to identification officers the next day.

[118] The property taken in the break-in was identified by recorded serial numbers. The two iPads taken were new, and they still had the boxes with the identifying numbers. Their chargers were also stolen. The Bose speaker was in use just minutes or hours before the intrusion and was easily missed immediately later that morning when the family was getting ready for church.

[119] During police surveillance post-offence in September 2018, Mr. Williams was observed carrying a black iPad to his vehicle.

[120] On October 13, 2018, Mr. Williams' vehicle was parked in front of X4 J[...] Court for approximately thirty-eight minutes in the evening. From that spot, he would have a clear view of X1 J[...] Court.

[121] The car left but was tracked by police to a local high school a few minutes later, and he was seen operating that car leaving that lot and departing in a manner suggesting he was surveillance conscience.

[122] A search warrant was executed at Mr. Williams' residence November 16, 2018. All of the electronics stolen from the J[...] residence were recovered there in his home. The iPads and chargers were in a box behind his bedroom door. The Bose speaker was plugged in and positioned on Mr. Williams' night table.

[123] Police also seized black shoes with white soles and a black zip-up hoodie at Mr. William's residence. These items were consistent with items seen on the video surveillance.

[124] C.V. viewed a video from her neighbour at X2 J[...] which showed a man walking across the lawn at 1:08 a.m. from X3 J[...] toward her house. She knows all her neighbours and their usual visitors and did not recognize the man as any of them. The man was walking on the lawn, not the street.

[125] I reject her comparison of the X2 J[...] Court and the X2 M[…] Street video surveillance as inadmissible opinion evidence, and I do not consider it.

Similar Act or Other Discreditable Conduct

[126] The Crown applies to have three other incidents on Mr. Williams' criminal record admitted into evidence and submits that they tend to establish evidence on the issue of identification and assist in proving the actus reus of these offences.

[127] Ms. Rochman submits none of the prior incidents alleged to be similar act are admissible on this trial.

[128] The incidents the Crown relies on are all admitted offences on the criminal record attributed to Mr. Williams. The facts are not in dispute. Mr. Williams admitted to the facts in the earlier proceedings. An outline of those facts are as follows:

First Incident

[129] On August 17, 2011, Mr. Williams pled guilty to committing an Indecent Act and Prowling by Night near a dwelling house. He received a sentence of 69 days (credit for 138 days) plus probation. The facts he admitted to were as follows: On August 26, 2009, at approximately 11:15 p.m., the victim, D.D. was at home in her residence located on Joyce Blvd. in Milton. She was in the basement of her residence. Her husband and daughter were already sleeping. She heard a tapping sound on the basement window. She went upstairs and turned on the outside light to see what was going on and when she stepped outside she was startled to see Mr. Williams standing at the window of her residence. This was approximately three feet away from her. His pants were partially open and he was stroking his exposed penis. She immediately closed the door and called 911, but Mr. Williams remained in the same spot, masturbating. Eventually he saw her on the phone and did up his pants and walked down her driveway. Police found him nearby in the area and he gave the police a few contradictory stories about why he was there.

[130] Less than one hour later, at 11:46 p.m., police received another 911 call from E.F. to attend 1480 Britannia Rd. Unit #89 in Mississauga, in regard to a suspicious male hiding behind a van possibly watching his wife M.F. (aged 45). Upon responding at the third scene, police observed a male matching the description of the three calls, hiding in the area. A foot pursuit ensued and eventually Mr. Williams was arrested after a member of the Tactical Team deployed his taser. A black balaclava and gloves were found in the backyards of the direction of the police chase, and the balaclava had Mr. Williams' DNA on it.

Second Incident

[131] On January 19, 2017, the Mr. Williams pled guilty to Sexual Assault, Breaking and Entering, and Indecent Act before the Honourable Justice W.J. Blacklock. He was sentenced on April 28, 2017 and received a sentence of the equivalent of four years (credit for 2.5 years of pre-trial custody plus another 18 months) and three years of probation.

[132] These convictions relate to two separate incidents in the same evening. The facts Mr. Williams pled guilty to are as follows: On September 25, 2015, shortly before 10:48 p.m. Mr. Williams was masturbating in the backyard of Q[…] Blvd. in Mississauga. The two complainants who noticed him there were two sisters, D.E., aged 22 and N.E., aged 9. D. had been sitting in her dining room doing her school work while N. was seated on a couch in the living room. N. noticed someone outside. D. got up and got close to the window and saw Mr. Williams masturbating while looking at her 9-year-old sister from on top of their deck right up to their back sliding glass door. D. yelled and banged on the door, but he did not leave. He continued to masturbate while looking at 9-year-old N., moved his hand to his mouth and shook his head as if to say "Shhh." It was not until she screamed for her brothers and tried to close the blinds that Mr. Williams started to slowly walk away.

Third Incident

[133] Police received the call in relation to the E. sisters at 10:48 p.m. Eight minutes later at 10:56 p.m., police received another 911 call to attend 3950 Erin Centre Blvd. Unit #42 in Mississauga, which is approximately nine backyards away from the first scene. Police attended and spoke to the complainant, P.M., 24 years of age. She resides in a walkout basement apartment at that address. Her room was accessed by a sliding glass door backing into the yard which she doesn't lock when she is home. She had just finished having a cigarette outside, when she shut off all her lights and got into bed. She was texting her boyfriend when she heard the sliding door open. The door is right beside her bed. It was dark so she asked who it was. She heard an unfamiliar voice. She turned on her flashlight on the phone and shone it on the intruder, who was Mr. Williams. He came over to her where she was lying under the covers and demanded that she take off her clothes and get naked. He started pushing her back onto her bed and was leaning over top of her trying to grab her arms to pin her down. He knocked the phone out of her hand. He grabbed her blankets completely off and started trying to pull off her underwear, which was all she was wearing. She fought back kicking and screaming and punching. She fought as hard as she could. Eventually Mr. Williams got up and ran out the door, shutting it behind him. Ms. M. ran upstairs crying to her landlords.

[134] September 25th was a warm night.

[135] The distance between the E. residence and the M. basement apartment is not dissimilar to that of the two instant allegations. They are adjacent townhouse developments.

General Principles

[136] The Court recognizes that prior discreditable conduct evidence is presumptively inadmissible, and I must carefully consider its probative value and prejudicial effects. The live issue at trial is whether the Crown has established identification of the perpetrator of the J[...] break-in and the identification of the perpetrator of the M […] break-in and sexual assault.

[137] The common law generally excludes evidence of bad character which suggests a propensity to do certain criminal acts. As the Supreme Court of Canada commented in the case of R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, at para. 31:

The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible. Nobody is charged with having a "general" disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the "similar facts" that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the ex-wife's testimony ("reasoning prejudice") or by convicting based on bad personhood ("moral prejudice"): Great Britain Law Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at s. 7.2.

[138] The rationale for admission or exclusion of this type of evidence is aptly expressed in Handy, at para. 27:

The contest over the admissibility of similar fact evidence is all about inferences, i.e., when do they arise? What are they intended to prove? By what process of reasoning do they prove it? How strong is the proof they provide? When are they so unfair as to be excluded on the grounds of judicial policy and the presumption of innocence? The answers to these questions have proven so controversial as to create what Lord Hailsham described as a "pitted battlefield": Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), at p. 445.

[139] The Supreme Court of Canada in Handy focused on identification of the "issue in question" as an Important Control in determining whether to admit similar fact evidence:

69 McLachlin J. speaks in B. (C.R.), supra, of the "value of the evidence in relation to an issue in question" (p. 732 (emphasis added)). McIntyre J., in Sweitzer, supra, emphasized that whether or not probative value exceeds prejudicial effect can only be determined in light of the purpose for which the evidence is proffered (p. 953). The importance of issue identification was also emphasized in D. (L.E.), supra, at p. 121; C. (M.H.), supra, at p. 771; R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 358; R. v. B. (F.F.), [1993] 1 S.C.R. 697, at p. 731; R. v. Lepage, [1995] 1 S.C.R. 654, at para. 35; and Arp, supra, at para. 48.

70 An indication of the importance of identifying "the issue in question" is that the trial judge is required to instruct the jury that they may use the evidence in relation to that issue and not otherwise.

71 This Court has frequently gone out of its way to emphasize that the general disposition of the accused does not qualify as "an issue in question". As stated, the similar fact evidence may be admissible if, but only if, it goes beyond showing general propensity (moral prejudice) and is more probative than prejudicial in relation to an issue in the crime now charged. I accept as correct the dictum of Lord Goddard C.J. in R. v. Sims, [1946] 1 All E.R. 697 (C.C.A.), at p. 700, that "[e]vidence is not to be excluded merely because it tends to show the accused to be of a bad disposition, but only if it shows nothing more", provided the "something more" is taken to refer to an excess of probative value over prejudice. Thus, for example, in B. (F.F.), supra, the accused was charged with the sexual abuse of a young girl in his care. Similar fact evidence was led from the complainant's brothers about physical abuse and the violent domination by the accused of the household. Iacobucci J., for the majority, stated, at p. 731:

... evidence which tends to show bad character or a criminal disposition on the part of the accused is admissible if (1) relevant to some other issue beyond disposition or character, and (2) the probative value outweighs the prejudicial effect.

72 Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law. Discreditable disposition or character evidence, at large, creates nothing but "moral prejudice" and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person. The defence of "innocent association" in B. (F.F.) was simply another way of expressing the denial by an accused of an element of the offence. The evidence of his prior discreditable conduct of a distinctive and particular nature, was considered to be strongly probative of specific issues in the case. Thus read, B. (F.F.) is quite consistent with B. (C.R.), and should not be interpreted as a rival "two-step" variant of the test.

73 The requirement to identify the material issue "in question" (i.e., the purpose for which the similar fact evidence is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it. Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.

74 The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded: R. v. Clermont, [1986] 2 S.C.R. 131, at p. 136; R. v. Bosley (1992), 18 C.R. (4th) 347 (Ont. C.A.), at p. 360; R. v. Proctor (1992), 69 C.C.C. (3d) 436 (Man. C.A.), at p. 447; R. v. Hanna (1990), 57 C.C.C. (3d) 392 (B.C.C.A.); and B. (L.), supra, at p. 50. The relative importance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. Similar fact evidence that is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice.

75 The "issues in question" are not, it should be emphasized, categories of admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probative value against prejudice.

[140] Ms. Nadler submits that the evidence, if admitted, would support two issues in question; namely (a) actus reus; and (b) identification. Ms. Rochman submitted that the evidence proffered on either issue would not be properly admitted on the facts of this case, and even if some probative value was apparent, the evidentiary value would be so slight that its admission would exceed its highly prejudicial effect.

Nexus Between Similar Act Evidence and Offences Alleged

[141] The degree of probative value attached to this evidence highlights the distinction between true evidence of propensity alone, and admissible propensity because it tends to prove the act in question.

[142] The considerations enunciated in R. v. Handy, at para. 82, are as follows:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 16 O.R. (3d) 214 (C.A.), at p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra, at p. 772;

(3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28;

(4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: R. v. Arp, supra, at paras. 43-45; R. v. Fleming (1999), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

[143] This was not meant to be an exhaustive list of factors.

[144] The Crown Ms. Nadler relies on a chart of similarities between all of these events:

Proximity in time of the similar acts

• D.D., August 26, 2009, 11:15 pm P.M. and E. sisters: September 25, 2015 (within minutes of each other around 11:00 pm) M.A.-H./C.V.: September 2, 2018 (after 1:40 am, and between 3:30-4 am) *Note that Accused was in custody from September 25, 2015 to approximately late April of 2018

Extent to which acts are similar in detail to the charged conduct

In respect of all offences: Conduct strongly suggests perpetrator watching females through back sliding glass patio door/rear of residence/basement of residence (voyeuristic element) In respect of C.V., P.M. and M.A.-H.: Entry into rear of residence In respect of P.M. and M.A.-H.: Breaking into rear of residence Entry by way of rear patio sliding glass door left unlocked Both females alone in their bedrooms with no one else on same level of residence Pulled blankets off victims Tried to pull off P.'s underwear; touched M.'s vagina over clothing On both occasions he left on his own volition when realizes he might be caught In respect of the E. sisters, M.A.-H., D.D.: High risk-taking sexual component; approaching very close to a residence where female(s) inside – masturbating in front of M.A.-H., the E. sisters and D.D. Eventually leaves on his own volition when realizes he might be caught.

Number of occurrences of the similar acts

• August 26, 2009 – D.D.: 1 September 25, 2015: 2 active incidents with the E. sisters and P.M. September 2, 2018: 2 occurrences (M […] and J […])

Circumstances surrounding or relating to the similar acts

All of the incidents demonstrate situations where the perpetrator is watching females of varying ages through the rear/basement of the residence late at night when it is dark outside. This is very flagrant, risk-taking behaviour. In three of the incidents he is masturbating (D., E. sisters and M.A.-H.). In three of the instances (M., M.A.-H., and V.-D.), he breaks into their houses. In two of the instances he does this by means of unlocked rear sliding door (M. and M.A.-H.) which leads to the lower level of the house where the victim's bedroom is, and sexually assaults the women inside. In respect of both sets of charges stemming from September 25, 2015 and September 2, 2018, it is noteworthy as well that both occurrences involve multiple incidents in a specified geographical region, suggestive of "spree" like behaviour. Further, in both instances, he resides not far from the area where the incidents occur.

Any distinctive features unifying the acts

The Crown submits the act of breaking into a residence and sexually assaulting a female is so rare as to make it distinctive.

Intervening events

Accused arrested and served sentence in between September 25, 2015 and September 2, 2018

Any other factor which would tend to support or rebut the underlying unity of the similar acts

n/a

[145] As stated by Watt J.A. in R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 90, the use of similar act evidence to establish identity generally requires an analysis of the similarities between the acts:

In the usual course where evidence of similar acts is proposed for admission in proof of a perpetrator's identity, the trial judge should review the manner in which the similar acts were committed, that is to say, whether the allegedly similar acts involve a unique trademark or reveal a number of significant similarities. This review enables the trial judge to determine whether the alleged similar acts were likely all committed by the same person.

[146] For an illustration of this principle, see the analysis of Fairburn, J. (as she then was) in R. v. Baskaran, 2019 ONSC, as approved 2020 ONCA 25, at paras. 36 to 40:

I accept the appellants' point that some of these similarities are generic, that is, they would be present in any case where these offences are committed. For example, the fact that the goods stolen are valuable. It is unlikely that robbers would steal worthless items. Another is the fact that a truck was stolen in each case. It is, of course, difficult to steal a transport trailer without a truck to move it.

However, there were other similarities that were more unique. These included that the perpetrators spoke in a language other than English. Another was that drivers or security guards were kidnapped and driven around during the course of the robberies. Yet another was that the drivers or security guards were all robbed of personal effects. Further, a gun was used, or its use was intimated, in all but one robbery. Lastly, all but one of the acts were linked to the same individual – the "ringleader".

The overall point of this exercise is to show that the objective probability of coincidence, given all of the items of similarity, together with the connections among the individuals, is low. Thus, it is permissible to infer that the same group committed the acts: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 31.

On this point, when considering similar act evidence in a context such as this, one should avoid placing too much emphasis on some of the language used, in various authorities, to describe the requisite degree of similarity, such as "signature" or "fingerprints". What is required is that the trial judge be satisfied that there is the high degree of similarity needed to reach the necessary conclusion that the alleged similar acts were, more likely than not, all committed by the same group: Perrier, at para. 21. That sufficient degree is often characterized in different language. For example, it is sometimes characterized as "striking". But the use of such adjectives does not change the nature of the inquiry. Using a word such as "striking" simply means that the circumstances stand out to an independent observer.

In my view, the trial judge was correct in concluding that the various robberies were sufficiently similar, based on the items of similarity that the trial judge mentioned, and which I have set out above. While some of those items can be challenged individually in terms of whether their similarity would suggest conduct by the same actors, that is not the proper approach. The proper approach is whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actors. I have no difficulty in agreeing with the trial judge that, in this case, they are. The likelihood that these robberies occurred randomly at the instance of entirely different individuals, or groups of individuals, is remote. As Binnie J. noted in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 45: "Coincidence, as an explanation, has its limitations."

[147] It is not useful to confine admissible similar act evidence to cases where the adjectival descriptor is "striking similarity", "markedly similar", "hallmark", "signature" or "fingerprint". As the Ontario Court of Appeal reiterates:

The proper approach is whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actor(s).

[148] Certainly, the degree of nexus or connection must be higher when used to establish identity. Evidence of propensity on the issue of identification is not admissible "unless the propensity is so highly distinctive or unique as to constitute a signature". In the Handy case, the question in issue was actus reus and not identification. The Court commented that propensity to commit a particular crime in a peculiar and distinctive way would be admissible.

[149] The proffered evidence of prior incidents of sexual acting out and sexual assault fail to meet this threshold. Masturbation or exposure takes place in the incidents in 2012, 2015 and this case, but that can hardly be said to be a distinctive act or set of acts. The two sexual assaults do not both involve masturbation, only the latter one. Although the sexual assaults are committed by the same mode of entry through a back patio door, and blankets are pulled off the victims, the assaults themselves are dissimilar, and not necessarily unique to Mr. Williams.

[150] The assault in 2015 was more intrusive than the present case.

[151] No peculiar act or acts were so similar in nature to be a type of hallmark or signature.

[152] No particular similar words were spoken.

[153] Some of the items the Crown says are similar are generic in nature, such as the fact that a break-in precedes the assault, or that a patio door is used as a point of entry.

[154] The episode of exposing himself and masturbating in 2012, is largely dissimilar to this count, where the offender acts on his impulses and attacks the complainant.

[155] The voir dire illustrates that there is some probability the acts in 2015 and in 2018 were committed by the same person. The evidence is similar in some respects, of a similar mode of entry, similar uncovering the complainant in her bed, and an assault on the heels of another risk-taking incident the same night. Both set of acts occur at night time and require stealth.

[156] On the issue of evidence of identification, the similar acts alleged must be more than that; they should be such that, on a balance of probabilities, it tends to establish that the same person did both the known acts and the alleged acts.

[157] Although certainly troubling and indicative of a pattern of loss of control, the current offence(s) are not so similar that all of the circumstances, viewed cumulatively, would, on a balance of probabilities establish all of these incidents were committed by the same person.

[158] If I err in that respect, and there is sufficient legal probity to the evidence sought to be admitted, and that the balance of probability is higher, the Court must balance the probative value of that evidence with its prejudicial effect upon the trial.

[159] Although a trial by a judge alone properly instructed attenuates the prejudicial effect of the evidence, because it is not likely to be used improperly, this balancing must also be taken into account.

Balancing Probative Value v. Prejudicial Effect

[160] Whether or not probative value exceeds prejudicial effect can only be determined considering the purpose for which the evidence is proffered.

[161] In the circumstances of this case, Mr. Williams did not testify or call evidence (and there was no obligation to do so). There was no suggestion of recent fabrication, accident, innocent association, or any other defences for which the probative value or degree of connectedness increases. There is no value in admitting this type of evidence as probative of actus reus.

[162] The only significant probative value of this evidence is if it tends to identify the male party seen on the M […] video and the J […] video, and the person(s) who committed the offences, and if it is not outweighed by its prejudicial effect.

[163] Propensity reasoning is prohibited, an example of which is that because Mr. Williams did something like this before, it is likely him that committed these offences or this offence.

[164] The self-direction not to draw prohibited inferences does not wholly answer this concern of misuse of propensity reasoning since this direction addresses the moral prejudice arising from general bad character, more than the reasoning prejudice arising from illogical reasoning.

[165] The prior incidents are "similar" and are a "pattern" of risk-taking conduct or behaviour but fail to meet the stringent requirements to admit propensity evidence or bad character evidence as consideration of identity.

[166] I conclude that the proposed evidence is not sufficiently connected to the primary issue of identifying the person or persons involved in this case.

[167] The similar act application is dismissed.

Identification

[168] Identity can be proven both directly or circumstantially. There is no "smoking gun" type of proof in the instant case.

[169] The Crown is unable to meet a standard of proof by any scientific evidence. Fingerprint recovery was unsuccessful at both the J[…] and M[...] break-ins. In the case of the J[...] residence, the dirt marks in the iPad room and on the staircase to the bedroom level, appear to suggest gloved hands. No fingerprints were able to be recovered at the M[...] residence either.

[170] This case does not involve DNA evidence.

[171] No clothing or other personal items of the intruder were left behind at either residence.

[172] Dock identification did not occur in examination-in-chief, or cross-examination.

[173] The residents at J[...] did not see the burglar that night.

[174] R.A.-H. did not see the trespasser sufficiently to identify him. M.A.-H. did see her attacker but testified by closed circuit television in the child friendly courtroom. Nor was it suggested that she could now identify her attacker.

[175] The Crown tendered other evidence on the identification issue.

i. Alicia Marini

[176] In addition to the video surveillance, the police surveillance of still photos and video, and the circumstantial evidence of the property found in the residence of Mr. Williams, the Court has the evidence of Ms. Marini, his probation officer.

[177] Ms. Marini supervises sexual offenders in the probation office in Mississauga. She began supervising Mr. Williams on his probation order on May 1, 2018.

[178] She always met him and retrieved him from the waiting room to her office down the hall. Health and Safety training requires the probationer to walk in front of the probation officer, and she observed him walking and the placement of his hands. She did this each time she met him. This observation pattern repeated at the end of each meeting.

[179] Ms. Marini met with the offender fifteen (15) times prior to his arrest, and ten (10) times prior to the two alleged break-ins.

[180] Most meetings were approximately between 20 minutes to one hour in duration. At least one meeting was two hours.

[181] During the meetings, Mr. Williams would sit across the desk from Ms. Marini, only three to four feet away. She would make eye contact and have conversation with him.

[182] There is no video surveillance in her office, but there is surveillance in the client waiting room, and other public areas.

[183] Ms. Marini identified Mr. Williams on a still frame from the video of the probation waiting area on Aug. 23, 2018.

[184] On Sept. 4, 2018, Peel Regional Police contacted her to request she look at video surveillance of an individual believed to be her client, Clayton Williams. She watched it that day.

[185] After watching the video, she noted "similar characteristics" between Mr. Williams and the male in the video and reported these to the police.

[186] Ms. Marini testified about her observations of similarity, as follows:

• physical build;
• a shaved head with slight regrowth, almost like a shadow;
• hairline, visible on the video;
• walk was similar to the walk of the accused when he reported to her;
• similar shoes to the ones the accused wore to her office prior to, and on Aug. 23. They were dark shoes with white soles;
• the clothing is similar to the type she has observed the accused wearing to her office, track pant style, t-shirt, or lumberjack print sweater, or dark work shirt one would wear at an automotive place; and
• height. She estimated Mr. Williams' height as 6 foot 2 inches from dealing with him directly, and the person on the video is similar height as depicted when he is between the garage and hedge.

[187] Her next meeting with the accused was two days later on Sept. 6th. She observed his appearance and noted he was wearing a baseball hat with the logo Mobil 1, a black t-shirt, dark gray sweatpants, and lace up gray shoes with lighter soles. The hat stood out for her because she recalled he did not wear a hat prior to his Sept. 6 visit.

[188] September 20 she met with him again, and he was wearing loafer type shoes, she had not seen before, gray with yellowish accent. His pants were like khaki, dark navy blue. He had a buttoned-up sweater shirt, and the same baseball hat. He had a scruffy beard, like a five o'clock shadow.

[189] On Oct. 18, he wore a black toque, pullover sweater, brown jean type pants, and the gray with yellowish sole shoes.

[190] The last meeting before his arrest was on Nov. 1, 2018.

[191] The defence argues that her reliability is diminished by police showing her the video from X2 M[...] Street and asking her if she can identify who is in it, and whether it was her client Mr. Williams.

[192] Ms. Rochman says this is analogous to an officer showing one photograph to an eyewitness, thus tainting the identification, or making it either incredible or unreliable.

[193] I have considered the potential that Ms. Marini's evidence was influenced by the manner in which the police showed her the video. However, as noted in R. v. Walker, 2019 ONCA 806, at para. 26, "There is nothing inherently suggestive in the police showing a witness a still or video clip and asking him or her to identify who is in it and what is happening".

[194] Ms. Marini knew what the police officers wanted to know, if the man on the videotape was familiar to her. She answered carefully and in detail. It was never suggested to her that she gave evidence tending to implicate her probation client because the police drew her attention only to Mr. Williams. In this case, she did not affirmatively agree the person was Mr. Williams, only that the man on the video surveillance was consistent with Mr. Williams' appearance for all the reasons she provided.

[195] Nor did Ms. Marini testify to any inconsistencies between the appearance, gait and movement of the unknown male and Mr. Williams. In other words, nothing contradicts her opinion evidence.

[196] I accept the evidence of Ms. Marini. It is helpful to the Court because of the number of times she observed Mr. Williams; the duration of those meetings of at least twenty minutes and at best up to two hours; the concentration of her powers of observation as part of her professional duties; and her observed impartiality. Ms. Marini was an excellent witness who never overstated her evidence.

ii. M.A.-H.

[197] The complainant was also a very good witness.

[198] I start with the acknowledgment that eyewitness identification is inherently unreliable. It is "deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for the same reasons".

[199] It is understandable that the complainant did not get an extremely detailed description complete with all the idiosyncrasies of her attacker. She did testify about a number of descriptors.

[200] M.A.-H. provided the following description of her attacker at 4:11 a.m., to the 911 operator:

• His penis was out
• He was black with a black hoodie, kind of a light kind of skin
• Say in his 30s
• Average build
• Don't know his height
• Bald
• I remember the black sweater
• She did not recognize the man

[201] In her videotaped interview, she described her attacker:

• Bald, black, not really dark brown, but not a light brown.
• Mustache and, like a tiny beard or something. Looked like he had facial hair…little bit here and there
• Black zip-up sweater, the hood was down
• Jeans unknown colour
• Unknown height
• Dark means black, solid brown, not really dark, not really light.
• No accent. He spoke but she did not know what he said.

[202] M.A.-H. adopted her videotaped statement in Court on a voir dire pursuant to s. 715.1 of the Criminal Code of Canada.

[203] In cross-examination, she used the word "bald" as not "shiny bald", not a lot of hair. She did not see the hair in the back.

[204] She agreed that his skin was not really dark or light but adopted her description on the 911 call of "light but it wasn't dark", "kind of light skin, in the middle between both of those". She is now not sure why she had said "solid brown".

[205] She confirmed he had on a black sweater which was zipped up. She could not remember if it was tight or loose.

[206] When asked to agree he had a mustache and a little beard, the witness said that he had facial hair, but it was not a lot. She did not agree that he had a goatee, just a little hair on the chin area. M.A-H testified she "was not examining or focused on his face, she was focused on getting out of there".

[207] It is suggested that her description of Mr. Williams is generic and inconsistent.

[208] Ms. Rochman suggested M.A-H. had described the offender as someone who had a mustache and beard, which was inconsistent with both the police surveillance photos and the M[...] video.

[209] I note that Ms. Marini at times observed Mr. Williams to have light growth of facial hair. Other times she did not.

[210] Facial hair is easily grown and easily removed for many adult males. Mr. Williams was not arrested the same day as the alleged incidents. His appearance had changed significantly by the time of his arrest in November of 2018, about six weeks later. However, police surveillance began within hours of the offences, and thus one can compare his actual appearance that same week to descriptions provided by the complainant in oral statements and on video.

[211] I find that M.A-H. never described a solid beard or mustache. She qualified it as a few strands here and there on his chin. One must consider her evidence as a whole, rather than parse each segment of it to arrive at a distorted result.

[212] In the case of R. v. Barkhadle, 2019 ONCA 1020, the appeal turned on the treatment of identity evidence. The Court was not persuaded that the trial judge erred in that regard:

[2] The complainant did state that her assailant had no facial hair but when pressed on the point, said she was not sure. In any event, the trial judge took this minor discrepancy into account in assessing the complainant's evidence. He found that her identification of the appellant was well supported by the circumstances of the identification and by other confirmatory evidence. In particular, a witness who observed the attack and saw the assailant shortly thereafter in a food court, fully confirmed the details of the assailant's clothing that had been identified by the complainant.

[213] The description M.A.-H. provided was consistent. Although Ms. Rochman submits that the description of "solid brown" and "light skinned black" were inconsistent, the Court finds them to be quite consistent. Although Mr. Williams presents as a light skinned black man, the Court has clear photographs of him taken just before and just after the alleged incident.

[214] M.A.-H. also saw his penis when he was masturbating, and parts which are normally clad in clothing. It is common sense they would not likely be tanned.

[215] I do not place any significant weight on the certainty or confidence the complainant demonstrated in her identification.

[216] The Court has also considered that perception and memory are selective processes and a witness may add to their actual perception of an event unintentionally in order to create a logical sequence.

[217] In this case, the witness identification is made more reliable when it is supported by the video camera footage on her street on the same timeline.

iii. Video Surveillance

[218] The critical circumstantial evidence of identity is that of the video surveillance taken by various residences in the J[...] and M[...] area in Brampton.

[219] Once it has been established that a video accurately depicts a scene, the video "may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events": R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 28.

[220] Whether or not the video recordings are of sufficient quality to form the basis for the identification is a question of fact. The quality of the recordings are relevant on the question of whether or not it is clear enough for the Court to review and place any weight on the video.

[221] The Court has viewed the various video surveillance clips multiple times in the course of the trial, submissions and on reviewing the evidence.

• The time stamps on each camera excerpt are accepted as correct;
• they show the male person leaving the direction of X1 M[...], cutting across lawns and driveways toward X4 M[...] Street;
• one can see the build of the man, how he walks, what he is wearing, and that fact that he has very short or closely cropped hair, giving a bald appearance;
• the hairline of the male is distinct on the X2 M[…] camera as well as the X3 M[…] surveillance.

[222] The Court is entitled to use its own observations of the video: see R. v. Nikolovski.

[223] The Court also has the benefit of the police mobile and photo surveillance of Mr. Williams which commenced soon after the M[...] break-in, and his appearance the week before this incident in his probation office.

[224] On September 4, 2018, P.C. Langlois conducted mobile surveillance of Mr. Williams to his workplace. He was able to describe his vehicle and Mr. Williams. He said that he was a light skinned black man, approximately 6 feet tall, between 200-210 pounds. He was wearing a baseball cap. He observed Mr. Williams working on cars from 1:06 p.m. to 7:10 p.m. He saw him change before entering his vehicle. He changed his shoes to black sneakers, with all white soles.

[225] He was followed to a gas station, and took video of the suspect. Mr. Williams was wearing the shoes the officer saw him change into, and a black ballcap. The Court has viewed that video recorded by police, which bears some significance.

[226] I have made my own observations of the M[...] video, mindful of the forceful submissions on behalf of Mr. Williams, and I am satisfied beyond a reasonable doubt that the individual depicted behaving suspiciously just feet away from M.A.-H's home and in obvious flight is Mr. Williams.

[227] Although not an exhaustive list of why I arrive at this conclusion, I observe the following from all of the M[...] home surveillance cameras:

• only one person, a male party, is observed on the street at this time in each of the series of shots from multiple cameras;
• the man shown on each of the cameras appears of the same body mass, height and general proportions;
• the times of the recording fit into a sequence of consistent movement and body language of the same individual;
• the outline of clothing appear the same;
• the man is coming from the direction of X1 M[...] Street;
• the timing is consistent with the timeframe described by the complainant;
• the man is travelling from right to left toward a main street;
• the man appears to 'hug' the house fronts in an unusual way, only walking by way of the street to go around a hedge or cross a street;
• he appears to be trying to avoid detection;
• the hairline is very distinctive, particularly since the hair is extremely short or almost bald, and one can see it clearly;
• the man on the videos is wearing distinctive shoes, and such a pair of shoes was worn by Mr. Williams at his probation appointment on Aug. 23 (less than 10 days before this incident), from his workplace on Sept. 4, and were found at his apartment in November by police;
• the height and build of the person is the same as other surveillance video known to be Mr. Williams;
• and, an almost identical stance, body position, hairline, posture and hand gesture are seen in the police surveillance video made outside and inside a gas station taken on Sept. 4.

[228] As previously mentioned, Ms. Marini's evidence tends to support the identification of Mr. Williams as the man on the video camera at X2 M[...] Street.

[229] Mr. Williams' proven involvement in the break-in on J[...] Court puts him in the area of both residences that night.

[230] Surveillance from X2 J[...] was also played from the night of October 13, 2018, and I have also viewed the video surveillance from the home at X2 J[...] Court for both dates on Sept. 2, and on October 13.

[231] From the tracking data and surveillance, the Court knows that Mr. Williams' vehicle entered J[...] Court on October 13 at approximately 9:34 p.m. and left the street at approximately 10:03 p.m. The video shows a male walking away from that car and cutting across the lawn of X3 J[...] at approximately 9:32:10 towards N[…] Drive, and then that same man is shown coming back from a different direction cutting across the lawn of X2 J[...] at 10:04:45.

[232] I find the man on that video of Oct. 13 is Mr. Williams. It is totally consistent with his appearance, and importantly is confirmed by the tracking data of the placement and timing of parking his car.

[233] A comparison of the male figure seen on the night of September 2nd from the same home at X2 J[...] is consistent.

iv. Search Warrant

[234] Shoes like those seen in the videos were located in Mr. Williams' home. These were quite distinctive with black uppers and white soles.

[235] Although Ms. Rochman suggests that the photo exhibit shows a brown colour at the tip of the soles, that is not clear. Also, no other colour is apparent on the shoes of the known photograph of Mr. Williams at his probation appointment, wearing these same shoes, nor on the surveillance footage from September 4.

[236] Electronic equipment stolen from J[...] Court was in his apartment. Serial numbers matched identically.

v. R.A.-H.

[237] R.A.-H. provides identification of a male by his home. It must receive less weight because of his poor angle looking almost straight down at the person.

[238] Nonetheless, I accept his evidence that a man was standing in his backyard below his sister's bedroom window at the known time police were on the street dealing with another incident. This police intervention was approximately forty-five minutes before the incident and when M.A.-H woke up her father.

vi. Post Offence Conduct

[239] The presence and activity of Mr. Williams on October 13 on J[...] Court is an example of post offence conduct, as circumstantial evidence.

[240] Another piece of circumstantial evidence tendered by the Crown is the change of appearance following these two break-ins.

[241] Mr. Williams had a very short haircut at the end of the summer of 2018. One might refer to it as shaved. One can always cut hair in short order, but it takes some time to grow it in. That is one thing that cannot immediately be changed without resort to disguise.

[242] I accept Ms. Marini's evidence that Mr. Williams did not wear a hat to any of his probation appointments prior to Sept. 2, 2018. This included the entire summer from May to Labour Day. He began wearing a hat following the incidents discussed here.

[243] This was after the Peel Regional Police issued a media bulletin including the video clip from X2 M[...] Street, asking for help identifying the male person on video.

[244] While wearing a hat may not in some cases have any significance, and Mr. Williams could have another reason for doing so, in this case there is no evidence of any other reason, nor a logical reason why after the summer, he would start to wear a hat.

[245] He wore this hat up until the time of his arrest.

[246] Growing out his hair is a more neutral fact. The weather changes and it may be preparation for the temperature variation of the autumn. I do not give weight to it.

[247] Another piece of circumstantial evidence the Crown relies upon, although to a lesser extent, is the surveillance consciousness evinced by Mr. Williams post offence. This included the driving manoeuvres seen by police on October 13, after Mr. Williams' vehicle was tracked to the area of the residential break-in on September 2nd.

[248] It is a reasonable inference that he knew or strongly suspected he was being followed at that late hour, and wished to avoid detection and/or the police finding out where he was living.

vii. Other Circumstantial Evidence

[249] Some of the evidence the Crown says serves to corroborate identification is not admissible for its truth. An example of this is the evidence that after the occurrence, the dog residing at X1 M[...] went directly outside to the area beneath the complainant's window to sniff around, rather than his usual gate post area. I disregard that evidence entirely.

[250] The Crown also argues that the Court should consider statistical evidence showing that no other break and enters where a sexual assault occurred were committed in Peel Region from the time Mr. Williams went to prison for the 2015 offences, until after his release in 2018, a few months before these events. This is really just evidence suggesting propensity, has no statistical validity to the assertion, and has no weight. I have not considered it whatsoever. It is not admissible.

[251] Similarly, the Crown relied on the fact that no other break-ins took place in the north end or the entire City of Brampton that night. That information has no evidentiary value.

Conclusion

[252] This Court accepts the evidence of M.A.-H. about what was done to her, and the circumstances under which she was sexually assaulted in the early morning hours on the Labour Day weekend. She was a very young girl, just entering her teens and pubescent awareness. The events traumatically impacted her but did not render her entirely numb. She acted on flight instinct. She quickly ran out of her room and up the stairs to wake up her father.

[253] She wanted something done about it and was impatient that nothing was being done and the man would get away. Her father was slow in reacting and so M.A.-H. called the emergency line herself.

[254] Her father was still trying to process what had happened when the police arrived and commenced their investigation. A description was taken over the phone, as well as by the attending officer. M.A.-H. later provided a videotaped interview.

[255] Police canvassed the neighbourhood for video surveillance footage, and found the cameras at the front of several M[...] Street addresses were operative and recorded activity shortly before 3:30 a.m. that same morning.

[256] The clearest video was from X2 M[...], two doors down from the complainant's residence, depicting a furtive male figure coming from the direction of her house. Other videos further down the street moreover show that male skulking across the front garages, doors and windows of homes, as far from the street curtilage as possible, and running across the street at X4 M[...].

[257] Peel Regional Police released the video excerpt from X2 M[...] in a media release, asking for anyone to assist in identifying the man shown.

[258] C.V. saw the media release and canvassed her own street on J[...] Court to see if there was also any video surveillance. The residents at X2 J[...] Court, the corner house on the court, had video of a man crossing their lawn going in the direction of X1 J[...] at about 1:08 a.m. on September 2nd.

[259] The video from X2 J[...] is not as clear, but one can see a man cutting across the lawn. I accept C.V.'s evidence that he was a stranger to the area. She is a stay-at-home mom, who home schools her children, and is very aware of her surroundings on this very small residential street, which is a dead end.

[260] The man was heading in the direction of X1 J[...] on the night of the break-in at approximately the time the family there retired from the first floor, and went to sleep, except that C.V. was up a little later.

[261] It is imperative that the Court not assess the evidence in piecemeal fashion rather than in its totality. In R. v. Button, 2019 ONCA 1024, the Court noted that the Crown places significant reliance on the Court of Appeal decision in R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, leave to appeal refused, [2012] S.C.C.A. No. 64, where the Court set aside an acquittal because the trial judge's reasoning was flawed, including because he considered each component of the case separately, so that "the persuasive effect of the totality of the evidence – the strength of the Crown's case – was taken out of play": at para. 66. The Court also stated:

[10] In this case, the trial judge took the same approach, and respectfully, made the same error as in Rudge. She assessed each piece of potentially inculpatory evidence separately, and rejected it on its own, without considering it in light of other potentially inculpatory evidence.

[17] In this case, I am not able to make that finding. This case is distinguishable from Rudge and other key cases relied on the Crown such as R. v. Curry, 2014 ONCA 174, 317 O.A.C. 329, leave to appeal refused, [2014] S.C.C.A. No. 185, and R. v. Knezevic, 2016 ONCA 914, because in this case, there was independent evidence that raised a reasonable doubt.

[18] At the end of her reasons, the trial judge pointed to two exculpatory pieces of evidence that raised a reasonable doubt for her about the guilt of the respondent. One was the alternative suspect. Because the evidence implicating him was weak, I could discount that evidence as a factor in the analysis.

[19] However, the second was the testimony of the victim. She knew the respondent both socially and through the auto shop where he worked. While she was not asked any questions in examination in chief by Crown counsel about the identity of the attacker or whether he was or could have been the respondent, in cross-examination she agreed that she did not know who the attacker was, but she was certain that the attacker was not the respondent. That evidence raised a reasonable doubt, and while it could be discounted by a trier of fact, it would be difficult to do so

[262] There is no independent or exculpatory evidence that raises a reasonable doubt here. Nor is there evidence by the complainant or others that exculpates Mr. Williams.

[263] This is not to misstate the onerous burden of proof that rests on the Crown to establish identity. Although Mr. Williams does not have to prove anything, the Court simply observes the lack of the type of evidence in other cases which raised reasonable doubt.

[264] As with the recent case of R. v. Booth, 2019 ONCA 970 at 137, ultimately, the success of the Crown's case depends upon persuading the Court that Mr. Williams "was enmeshed in an incriminating web of facts that could not be attributed to coincidence".

[265] That web of incriminating facts in this case is based upon, inter alia, similarities between the video surveillance at X2 J[...] and the video surveillance along M[...] Street, and the similarities between the clothing and physiology of the man cutting the corner and cutting across garages, as observed in the digital video recorder evidence; the rather distinctive footwear seen on those videos appearing to match that seized by the police when executing the search warrant; the probation office still photo showing the appearance of Mr. Williams wearing those shoes on August 23; the geographic coordinance of the two break-ins; the timing of the two early morning entries; the interest shown by Mr. Williams in this area, which is not by his home or place of employment, or on route to either; the body language of Mr. Williams in known photos and videos; similarity of general descriptors; the tracking warrant; the discovery of the items stolen from J[...] Court in and around Mr. Williams' bedroom, which appeared in use by him; post offence conduct, particularly evidence of surveillance consciousness; appearance changes; and his distinctive hairline.

[266] Ms. Rochman argues very persuasively several areas which in isolation could potentially be capable of raising a reasonable doubt, particularly if there was evidence to support the inferences she would have me draw. However, for the most part, this is nothing more than speculation or an invitation to reweigh various pieces of circumstantial evidence in isolation, rather than to consider these pieces of evidence in totality.

[267] The Crown argued that the Court could consider that because these were the only two break-ins that night in all North Brampton, that the same perpetrator was responsible for both. This is impermissible propensity reasoning. I do not consider it.

[268] It is also admitted that Mr. Williams' cellphone was not in use between 2:00 a.m. and 4:00 a.m. on September 2nd. Each of the lawyers argued that fact strengthened their positions. The Crown says that the lack of use in that time means he was busy committing offences. The defence says that lack of use can be nothing more than consistency with sleeping. I consider that a neutral factor, which I do not consider as part of the circumstantial web.

[269] Although the Court is permitted to form its own conclusion on viewing the M[...] video as per Nikolovski, the Court's own view of conformity of the appearance of the suspect male with that of Mr. Williams is enhanced by the opinion of his probation officer to the same effect, and the confluence of circumstantial evidence which negates the probability of coincidence.

[270] On an objective view, I am satisfied beyond a reasonable doubt that it is Mr. Williams shown leaving the area of X1 M[...] Street.

[271] The Court finds beyond a reasonable doubt that Mr. Williams committed the J[...] Court break and enter. I find he was in the area, as he later broke into and entered the home on M[...] Street.

[272] He was seen carrying an iPad the next day.

[273] The stolen property was found in his residence.

[274] The police proved by tracking technology and a cell phone warrant that Mr. Williams was on that street late at night a few weeks later October 13. He stayed parked there over one-half hour. He left his vehicle and returned to it much later by an alternate route. A neighbour saw the driver of that car, which I find beyond a reasonable doubt to be Mr. Williams, walk in the direction of X1 J[...] Court. This level of interest is inconsistent with a person merely possessing stolen property, if not involved in the actual break and enter offence.

[275] The Crown did not apply to have consideration of count to count similar act evidence.

[276] Both counsel do, however, agree that if I find that Mr. Williams committed the J[...] Court break-in, it can be considered as one piece of circumstantial evidence linking him to the general area and timing of the M[...] Street incident.

[277] This is not like the case of R. v. Tsigirlash, 2019 ONCA 650, in which the trial judge misused evidence across counts. In this case, each count can be determined beyond a reasonable doubt without reference to any comparison of incidents. It is fact-driven and circumstantially relevant, without any propensity reasoning.

[278] I specifically do not draw any inference that because he did one of the break-ins that he is the type of person who would do both of them. The Court has carefully not considered any prohibited propensity reasoning.

[279] This case, like many, is a "jigsaw puzzle of proof".

[280] The burden rests on the Crown to establish each element on each count beyond a reasonable doubt, and there is no burden on the defence to establish anything.

[281] The Crown assiduously put together its case, particularly on the issue of identification.

[282] I accept the evidence of M.A-H and it does not leave me in any doubt. She was sexually assaulted in the early morning of September 2, 2018, in the confines of her own bedroom in her home, which ought to be a place of safety and sanctuary. During all the confusion following, the perpetrator escaped.

[283] Understandably she was not able to provide an extremely detailed description of her assailant, since the incident was brief and in circumstances of high stress. Her degree of acuity was very impressive in the circumstances. Her description generally fit the male seen on video fleeing from the direction of her house. I do not place significant weight on the certainty of the complainant's evidence. She is very credible. However, her evidence is confirmed in many respects by other details.

[284] Other circumstances suggest a male was loitering outside her bedroom window some time earlier that night, after 2:30 in the morning. A bucket, or plastic pail, had been placed upside down beneath her window, which was not familiar to her family or at least had never been placed there by I.A., M.A.-H. or R.A.-H. Her brother saw a "bald" man standing under his window and right beside his sister's bedroom window.

[285] The video surveillance most of the way down her street showed the male who fit her original general description to the 911 operator. The times generally line up with the description of the event. Mr. Williams' probation officer, viewing the home surveillance camera footage, identified the male seen as consistent with her client in eight respects. She did not testify as to any inconsistent features of that male with Mr. Williams.

[286] Across from her backyard, a house had been broken into that early morning as well. I find the burglar fled that home's back yard and once on N[…] Drive, was within view of M.A-H's backyard.

[287] I am satisfied beyond a reasonable doubt that the J[...] intruder that same early morning was Mr. Williams. He showed an interest in that street again six weeks later. It was not on his route home, nor on a common thoroughfare. An objective improbability of coincidence, in all the circumstances, has been established by the Crown beyond a reasonable doubt.

[288] The Court is satisfied beyond a reasonable doubt that Mr. Williams committed the break and enter on J[...] Court before he went over the back fence and came to M[...] Street.

[289] Although it is entirely likely and even probable, given the timing of the video from X2 J[...], that Mr. Williams arrived at the backyard of the J[...] residence in question before the lights went out, and the family retired, I cannot find this aggravating factor beyond a reasonable doubt.

[290] The Court does find that he went up the stairs inside the residence and got to the bedroom level. He may have been surprised that an adult was awake, moving from the laundry room to the bedroom; he may have changed his mind; and it may have crossed his mind that eight people living on that floor may have increased the chances of getting caught.

[291] I cannot directly determine his intentions on the evidence heard, although a reasonable inference supports either more stealing, or other nefarious intent. The latter appears more probable, especially because he revisited the scene weeks later on October 13.

[292] The defence submits that it would be an error to fail to find that a reasonable doubt arises from gaps in the evidence and to fail to find that inferences inconsistent with the appellant's guilt could be drawn from the evidence. While I agree with Ms. Rochman that viewed in isolation and in a piecemeal fashion, alternate inferences inconsistent with guilt could be drawn from isolated pieces of the evidence, a consideration of all the evidence in totality comes to a different conclusion.

[293] It is an error to view the various pieces of circumstantial evidence in isolation: R. v. Ezechukwu, 2020 ONCA 8, at para. 28.

[294] In these circumstances, the Court views the various pieces of circumstantial evidence cumulatively and in totality.

[295] The Court is satisfied, properly instructing itself on the burden of proof in a circumstantial case, that the Crown has established beyond a reasonable doubt that the identity of the person who broke into both homes that night was Mr. Williams.

[296] Mr. Williams sexually assaulted M.A.-H. in her bedroom, by pulling off her covers, and touching her vaginal area with his hand. M.A.-H. was only thirteen years old, and is of course under sixteen years of age. He fled when she escaped and began to wake up the household.

[297] He is found guilty on counts one, two, three, five and six.

[298] Mr. Williams was in possession of the property stolen from the J[...] address when the search warrant was executed at his residence. He knew these items were stolen, because he stole them. The issue of knowledge and control was not argued in submissions.

[299] He is found guilty on count 7.

[300] Admittedly, he failed to comply with the provision of the Sexual Offender Information Registration Act, by failing to report his change of address.

[301] He has also previously been found guilty on count 4.

[302] I have asked counsel for submissions on which counts should be conditionally stayed as per R. v. Kienapple, [1975] 1 S.C.R. 729.

Released: January 29, 2020

Signed: Justice N.S. Kastner