Ontario Court of Justice

Date: 2022 06 13 Court File No.: Metro North, Toronto Region 20-45000464

Between: Her Majesty the Queen — And — Gregory Potter

Before: Justice Cidalia Faria

Heard on: December 2, 3, 17, 2021, January 28, April 7, 2022 Reasons for Judgment released on: June 13, 2022

Counsel:

• Imran Shaikh, for the Crown
• The defendant Gregory Potter, on his own behalf
• Marissa Etwaroo, s.486.3 Counsel
• Elliott Starer, Amicus Curiae
• Kathryn Doyle, counsel for the defendant POTTER for submissions

Faria J.:

I. Overview and Introduction

[1] Gregory Potter was charged with Criminal Harassment for repeatedly communicating with Dr. Michael Bartucci on February 3, 2020.

[2] He proceeded to represent himself at trial on December 2 and 3, 2021 with the assistance of s.486.3 appointed counsel, Ms. Marissa Etwaroo, to cross-examine the complainant, Michael Bartucci.

[3] After speaking to Mr. Potter, and before she commenced her cross-examination, Ms. Etwaroo alerted the Court that an issue of Not Criminally Responsible may arise. She proceeded with the cross-examination.

[4] After the Crown’s case was closed, and upon explaining in broad strokes the meaning of a Not Criminal Responsible inquiry, Mr. Potter indicated that he was interested in pursuing this issue. Before Mr. Potter decided whether to raise this issue, the Court adjourned the matter to December 17, 2021, to appoint Amicus Curiae.

[5] Counsel Mr. Elliott Starer agreed to become Amicus, review disclosure, meet with Mr. Potter, discuss the issue of Not Criminally Responsible and assist the Court with the legal issues involved. On January 28, 2022, Mr. Starer advised the Court that Mr. Potter would not pursue an assessment to determine if a Not Criminally Responsible finding was available to him. Rather Mr. Potter was going to call evidence in his defence. Mr. Starer advised that though in his view, the witnesses Mr. Potter wished to subpoena to testify would not have any relevant evidence to give, nonetheless, he was prepared to assist to subpoena those witnesses to attend for Mr. Potter’s trial.

[6] The Court inquired as to who Mr. Potter wished to subpoena. A review of Mr. Potter’s list of witnesses revealed them to be officials he believed to have roles with CSIS, the RCMP, and government positions. Some named, such as Bill Blair, Public Safety Minister and Juliette Payette, former Governor General and others not identified. The Court determined these witnesses did not have relevant evidence to the issues before the Court.

[7] Mr. Potter then requested an adjournment to prepare himself to testify. He agreed to meet with Mr. Starer who could assist him to organize his evidence and be able to present it to the Court. The trial was adjourned to April 7, 2022.

[8] On April 7, 2022, Mr. Potter advised he would not testify and had retained Ms. Kathryn Doyle to provide submissions to the Court, which she proceeded to do.

II. Summary of Evidence

[9] Although the substance of the allegations are two voicemail messages on a single day, the context of those messages is one that spans a period of about 8 years.

[10] Dr. Michael Bartucci testified that back in 2011 or 2012, he had a public Facebook profile with photos of himself, his family, his phone number, his house address, and his e-mail address. He received a “friend request” from a person named “Gregory Potter” who had many mutual friends with him and so he accepted though he could not place him.

[11] He described the nature of Gregg Potter’s original Facebook posts to be “flirty” referring to himself as an architect, and since Michael is a doctor, they “would be a great pair”. He then became “aggressively romantic”, pushing that they should be “together” as a “power couple”. At first Michael Bartucci responded politely and said that Gregg Potter was “an attractive guy too”. Gregg Potter’s Facebook profile had a headshot photo of himself with sunglasses.

[12] Within a month of accepting the “friend request”, there was a “quick escalation” and Gregg Potter called Michael Bartucci on the telephone in the middle of the night. He did so several times wanting to talk. After a few of these calls which disrupted his sleep, Michael Bartucci became “very upset” with Gregg Potter and said “stop calling me” several times. “It started happening consistently despite me asking him not to do it, so I said, ‘Don’t do it’.”

[13] Michael Bartucci then proceeded to make inquiries of Rogers on how to block Gregg Potter’s number and did so. That number is still blocked on Michael Bartucci’s phone. He then blocked Gregg Potter on Facebook.

[14] Once he blocked Gregg Potter, although he did not answer the calls, he continued to receive romantic voice mail messages from him at random times including comments such as “can’t wait till we’re together” which he would delete as they “creeped” him out, though he did not think they were dangerous.

[15] On social media, it is known that Michael Bartucci works at a sexual health clinic in downtown Toronto named Hassle Free Clinic. Gifts began to be dropped off at his workplace. He began receiving items such as cake, a rose and little angel pendant, sushi, with letters signed “Gregg Potter” with declarations of love and wishes of wanting to be together. Every 6 to 12 months, usually on Valentine’s Day, Michael Bartucci received these random gifts with letters signed Gregg Potter.

[16] In February 2017 and continuing “a lot of 2017”, Michael Bartucci received messages from another profile with Gregg Potter’s photo on it. He did not accept the repeated requests to be friends. The content of those messages was similar. These messages state “just dropping by today to say hello, and wish you well.”, and “I may drop in some day and come see you at your amazing clinic”, “I am so happy you are home Michael”, “There is always someone looking out for you. I made sure of it. (Yeah, I appear Cray. Hahaha…but little did you know that I am of the Victorian Cross Royal Canadian Air Force Squadron)” [1]. They contained expressions of love such as “love you” and “all my love”. These messages went into a special folder for people who are not “friends” that have been blocked as indicated by the “I don’t want to hear from Gregg” on the Exhibit.

[17] In addition to professions of love, a future as a couple, and references to the military, Michael Bartucci testified that the communications were sometimes “just ramblings of like unintelligible monologues about things” and became odder and odder. There was a “romantic disconnection from reality” but they did not make him “afraid or worry” at the time as he did not think Gregg Potter to be dangerous, though they “creeped” him out.

[18] The last gift Michael Bartucci received was a shoe box of used medical supplies before he left for the Philippines with a Canadian charity he runs. Again, it came with a note signed “Love Gregg” which again “creeped out” Michael Bartucci. It had been public information via the charity website which had Michael Bartucci’s photo that he was travelling in early 2019.

[19] In early 2019 “things started escalating”. Michael Bartucci travelled to the Philippines. When he returned, he received posts from his sister, Deanna, showing Facebook messages from “Gregg”” sent to his sister. In them, Gregg Potter inquired about whether she had heard from “Michael” as he was “expecting to see him when he got back from the Philippines”, saying “the Canadian Armed Forces are looking for him”, informing “that negligence to inform me, L. Col POTTER, is considered obstruction of justice”, he states “Please respond within 7 days” and “PS- We can see when you view my message through your camera, IT SQL, Python, and back doors”. In addition he says, “I’m bringing him home” and asks “Please, let me know if I done something wrong, or if he just wants nothing to do with me. It’d really make my heart settle”. He identifies himself as “L. Col Potter” “from RCAF” [2].

[20] Michael Bartucci was able to “ignore, block, delete, throw away” these communications and thought that though odd, he did not want to use finite resources “including legal resources unless I feel like it’s absolutely necessary” until June 2019.

[21] He threw away the gifts. He deleted the voicemails. He continued to block Gregg Potter’s number on his phone and on his Facebook profile. From the time Michael Bartucci told Gregg Potter not to call him in 2012, Michael Bartucci testified he never called, texted, mailed or responded to any of Gregg Potter’s communications. He had “made everything private” even though he had wanted to gain recognition for his charity and raise funds.

[22] When Michael Bartucci identified Gregg Potter to be Mr. Potter on screen at trial, he became quite emotional.

[23] On June 16, 2019, while Michael Bartucci was in Ethiopia, he testified the communications changed from this “odd romantic figure to then suddenly I’m an assassin and he’s in the military”. He became aware of and then saw that Gregg Potter posted his picture online alleging he should be charged “with conspiracy to commit murder”, was “evil”, was “a Canadian doctor” and was “recruited to secretly assassinate Canadian civilians” and that his “sister Deanna” “was just as guilty”. [3] There were 5 posts, and again Michael Bartucci testified they all had Gregg Potter’s photo in his sunglasses and identified as “Gregg Potter”.

[24] Michael Bartucci “took screen shots of all of it, and then created a post” and asked his friends and family to take down the posts, he was concerned the posts would negatively impact the organization he was working with, he became concerned about his safety and that of his family. He testified “there is this military aspect to his identity, and now I’m an assassin….So now it might be justifiable to hurt me or my family.” “that actually was extremely frightening at that point”.

[25] With spotty Wi-Fi from Ethiopia, Michael Bartucci reached out to the Toronto Police Service to report the social media communications and his safety concerns. He sent the posts he was referring to, to the Toronto Police.

[26] Michael Bartucci then unblocks Gregg Potter to see what he was posting on his page and sees the following post: “The Toronto Police were just here at my house claiming that ‘the doctor’ is claiming that I harassed him. Hmmmmm… It’s really interesting that he attempted to assassinate me on March 6, 2019, I sent them right to your house. It’s ok to kill someone? Plate full.” [4]

[27] Michael Bartucci used his “story as, like, an example of the dangers of social media”. He testified “I’ve changed the patterns that I got to work, how I went there, and the amount of times I go to the work (place) that he knows I work at, because there are other locations that he doesn’t know I work at. So, I’ve changed significantly what is available on-line and how people access it.”

[28] The next time Michael Bartucci heard from Gregg Potter was February 3, 2020, when he called him and left two voicemail messages.

[29] In the first message left at 2:23am the caller identifies himself as “Gregory Potter” calling, who is a “Royal England Recipient”. The message addresses “Michael Bartucci” and informs “you are under investigation by treason”, refers to the Toronto Police, says Michael is an immigrant and will lose his licence. The second message left at 2:46am, with the same voice and intonation advises that he is “launching an international suit for defamation of character”, refers to Michael’s sister, accuses Michael of ‘harassing” him for so long, and that he has it “backwards” and again refers to the loss of licence, this time with a specific reference to obstetrics from a specified telephone number. [5]

[30] Michael Bartucci called the police and Mr. Potter was arrested on February 4, 2020. [6]

III. Law

[31] In a criminal trial, an accused person is presumed to be innocent, unless and until the Crown establishes their guilt beyond a reasonable doubt. The Crown must prove each essential element of an offence charged beyond a reasonable doubt. The burden of establishing beyond a reasonable doubt that an accused committed the offence charged “rests with the prosecution throughout the trial and never shifts to the accused”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27.

[32] A reasonable doubt may be based on the evidence, or absence of evidence. Proof of probable or likely guilt does not satisfy the standard of proof beyond a reasonable doubt.

[33] The offence Mr. Potter is charged with reads as follows:

Criminal harassment s. 264 (1) of the Criminal Code No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

o (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

[34] The elements of the offence are:

(i) The accused engaged in the conduct of repeated communication (ii) The complainant was harassed (iii) The accused who engaged in such conduct knew that the complainant was harassed, or was reckless or wilfully blind as to whether the complainant was harassed (iv) The conduct caused the complainant to fear for his safety or the safety of anyone know to the person (v) The complainant’s fear in all the circumstances was reasonable.

IV. Analysis

[35] At several points during Michael Bartucci’s testimony, he referred to what others told him, specifically his co-workers, his sister, his mother, his father, and officers. This is hearsay and inadmissible for the truth of its contents. I instructed myself throughout the trial to that effect. Only what Michael Bartucci did, saw, read, said, heard, and felt is relevant and admissible.

[36] There is no dispute Michael Bartucci was afraid for his safety and that of his family, and that his fear was reasonable in the circumstances (elements iv and v).

[37] The messages in Exhibit 3 articulate the specific knowledge and awareness that Michael Bartucci is not responding. The author, Gregg Potter identifies two possible reasons for this: “if I done something wrong or if he just wants nothing to do with me.”

[38] Michael Bartucci never responded to Gregg Potter between 2011-2012 and 2017, the date of these posts. I find that by 2017 this Exhibit 3 demonstrates Gregg Potter knew that Michael Bartucci did not want contact.

[39] Between 2017 and 2020, Michael Bartucci continued to block Gregg Potter and deny his repeated Facebook friend requests. This state of non-response Gregg Potter identified as because either he had “done something wrong” or Michael “just wants nothing to do with me” in 2017, remained until February 3, 2020 with the added feature of allegations that Michael Bartucci is evil and an assassin starting in 2019.

[40] Repeatedly contacting someone with messages of love and affection who does not respond and blocks you on social media for about 8 years is a clear indication that person wants no contact. Gregg Potter was running a significant risk that he was harassing Michael Bartucci up until 2019. When he added accusations of a frightening nature as he did in June 2019, he increased that risk to reality. I find that when Gregg Potter called Michael Bartucci on February 3, 2020, he knew, was reckless, or wilfully blind that he was harassing Michael Bartucci. I find the element (iii) is proven.

[41] Counsel for Mr. Potter submits that the Crown did not prove two elements beyond a reasonable doubt and are at issue.

A. Do two messages on the same day constitute “repeatedly”?

[42] Counsel for Mr. Potter submits that the two voicemail messages do not constitute “repeated communication”. She refers to the case of R. v. Roylance [7] where the trial judge in that case found that when the complainant retrieved the seven voice-mail messages, he did so all at the same time, which he found, therefore did not constitute “repeated communication”.

[43] This Court turns for assistance to the Ontario Court of Appeal which stated in Ohenhen [8]

[31] In my view, the dictionary definitions of the words "repeat" and "repeated", from which the adverbial form "repeatedly" is derived, lead me to conclude that conduct which occurs more than once can, depending on the circumstances of the case, constitute "repeated" conduct or conduct which is "repeatedly" done and the section is met. In my view, it is unnecessary that there be a minimum of three events or communications. "Repeatedly" obviously means more than once but not necessarily more than twice.

[32] While one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(c) and (d), it will not be sufficient to satisfy s. 264(2)(b). More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and should not be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs more than once, in my view, the actus reus can be made out. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and accused. It is in this context that a determination will be made as to whether there has been repeated communication. On the facts of this case, it was clear that neither of the communications could be characterized as innocuous or accidental. In the context in which they were made, these two communications would be [page 581] sufficient to constitute "repeatedly" communicating as set out in s. 264(2) (b) (emphasis added)

[44] The history between Gregg Potter and Michael Bartucci spanned over 8 years. During the entirety of that time, Gregg Potter continued to contact Michael Bartucci repeatedly in several ways including Facebook messages, gifts, voicemails, and posts - without a single response from Michael Bartucci the entire time. These unreciprocated communications of love, affection, information, advice, and finally of a defamatory and threatening nature is the backdrop to the two voice mail messages of February 3, 2020.

[45] These two voicemails “are not communications that could be characterized as innocuous or accidental” in the context and background of history between Gregg Potter and Michael Bartucci. I find that they do constitute “repeated communication” pursuant to s.264(2)(b).

B. Has the Crown proven beyond a reasonable doubt that it was Mr. Potter, the accused, who called Michael Bartucci twice on February 3, 2020?

[46] Counsel submits the Crown did not prove that the Gregg Potter in sunglasses in all the Facebook posts is the Mr. Potter before the Court and that Michael Bartucci is unable to identify Mr. Potter’s voice. [9]

[47] Michael Bartucci was familiar with Gregg Potter over a period of 8 years. He became familiar with Gregg Potter’s vocabulary, patterns, voice, and methods of contact. All the communications, be they posts, letters, or messages were signed Gregg, or Gregg Potter, and then L. Col Potter with the same photo and profile. All the exhibits of the messages sent to or seen by Michael Bartucci have a photo of Mr. Potter before the Court in his sunglasses.

[48] Michael Bartucci identified Mr. Potter on screen to be the person who had been communicating with him for over 8 years via Facebook messages whose photo was attached to all the posts and is the same photo in each of the Exhibits filed. I find that Mr. Potter is the Gregg Potter who communicated with Michael Bartucci for those 8 years.

[49] Michael Bartucci identified the two voicemail messages he received February 3, 2020, to be from Gregory Potter, provided them to police, and they were filed as Exhibit 2.

[50] The caller in the first message identifies himself as “Gregory Potter” and the second message is a continuation in theme and substance from the first. These messages were sent in the middle of the night, refer to defamation, Michael Bartucci’s sister, treason, the Toronto Police, and that Michael “has it backwards” regarding harassment. The content is similar to the content of the post made on the day Michael Bartucci reported his concerns to police in June 2019 [10] in that Gregg Potter speaks to the Toronto Police were at his home, but it is Michael Bartucci who “attempted to assassinate me”. He is claiming the reverse, that he is harassed.

[51] The only number Michael Bartucci still has blocked on his phone is that of Gregg Potter’s. It is not the voice of Gregg Potter that Michael Bartucci identified, but rather the content, tone, and timing of the voice mail messages to be Gregg Potter’s, the same person who had been communicating with him for years, the same person on the post profile photo, the person before the Court.

[52] I therefore find the Crown has proven beyond a reasonable doubt that Mr. Potter called Michael Bartucci twice on February 3, 2020.

V. Conclusion

[53] My reasons explain that I find Gregory Potter committed the actus reus of the offence of Criminal Harassment, I also provide my reasons as to how I find Gregory Potter had the mens rea of the offence, but before I find him guilty of the offence, I will raise one issue with the parties.

[54] At several points throughout the trial Mr. Potter made some unusual claims and made some unusual references. At one point, when a reference to a resolution was made, he stated: “with your order of me to do a treatment”. When s.486.3 Counsel referred to N.C.R. and the Court explained what the term “Not Criminally Responsible” means, Mr. Potter stated that he was “a hundred percent sure” that it applied to him.

[55] For this reason, I would like to hear submissions on the issue of NCR.

Released: June 13, 2022 Signed: Justice Cidalia C.G. Faria

References:

[1] Exhibit 4: Facebook messages February 18, 2017 [2] Exhibit 3: Facebook messages, April 17, 2019 [3] Exhibit 5: Facebook message, Sunday, June 16, 2019 [4] Exhibit 1: Facebook message, seen ‘night received information from Toronto Police Service’, Michael Bartucci, June 2019 [5] Exhibit 2: Voicemail messages, February 3, 2020. [6] The Crown did call Officer Mustafa Safari who arrested Mr. Potter at Mr. Potter’s request. Det. Safari took Dr. Bartucci’s statement as well as statements from his parents. Via s. 486.3 counsel, Mr. Potter cross-examined Det. Safari and elicited that the Detective did not take a statement from Mr. Potter as Mr. Potter had not spoken to Counsel while at the police station; the Detective did not recall having asked Mr. Potter if Michael Bartucci was treasonous. [7] R v. Roylance (2003) CarswellOnt 6280 (Ontario Court of Justice) at ¶s11, 12, 13, 16, 17,18 and 19. [8] R. v. Ohenhen, 2005 34564 (ON CA) at ¶31 & 32 [9] She submitted R. v. Danaii-Ail, 2011 ONSC 2230 in support of her position vis-à-vis voice identification [10] Exhibit 1: Facebook message, seen ‘night received information from Toronto Police Service’, Michael Bartucci, June 2019