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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

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

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

ONTARIO COURT OF JUSTICE

DATE: November 3, 2023 COURT FILE No.: Toronto 21-55002033

BETWEEN:

HIS MAJESTY THE KING

— AND —

P. B.

Before: Justice D. Maylor

Heard on: October 4, 5, 2023 Oral reasons for Judgment released on: October 24, 2023 Written reasons released: November 3, 2023

Counsel: S. King, for the Crown M. Engel, for the defendant P.B.

Maylor J.:

Introduction

[1] The defendant, P.B. is charged with voyeurism and unlawfully distributing an intimate video. It is further alleged that he committed assault causing bodily harm and criminal harassment.

Evidence

[2] The complainant testified to being in an intimate relationship with the defendant for more than two years. They met at a half-way house where the complainant was a staff member, and the defendant was a resident. They both left that location about six months later. The complainant found other employment. The defendant lived with his parents. Shortly thereafter they developed a relationship resulting in the defendant moving into the complainant’s home in 2019.

[3] Between the beginning of June and the middle of July 2021 their time together was ending. Although their relationship was concluding, it was the complainant’s evidence that they engaged in consensual sexual activity and drug abuse in the weeks leading up to their final days together. It was during this time-period that the complainant claims the defendant took a video and photographs of their sexual acts and her partially nude body without her consent.

[4] The complainant testified that she first learned of the video of herself and the defendant engaging in sexual intercourse, when it was shown to her by a mutual friend between one to two weeks prior to July 17, 2021. The video was on the friend’s cell phone. The complainant did not confront the defendant about it. Her reasoning was that she was not sure what the defendant intended. She wanted to keep the peace rather than confront him. It would lead to an argument, she said, and she wanted to avoid confrontation. She readily admitted to having no previous issues with him harming her. The complainant was either reluctant or refused to give the police the mutual friend’s contact details. There is no admissible evidence from the friend as to how she received the video.

[5] On or about July 17, 2021, the defendant was moving out of the complainant’s residence. Before leaving he told the complainant that he put a tracker on her motor vehicle to know her whereabouts. He believed that she was cheating on him. He showed her the tracking device, a small black box about two inches square. As well he showed her a tracking map on his cell phone of her recent travel route attending places that she previously denied visiting. He also revealed videos and photographs on his phone that depicted images of their sexual relations, her semi-clad nude body, and illicit drug use. The complainant testified that she did not consent to being photographed or video recorded.

[6] According to the complainant the defendant threatened to show the videos and photographs to her family, friends, and work manager to let them know about her activities.

[7] While the defendant was moving his belongings, the complainant was anxious and felt the need to get “something on him” were the words she used. She went through his personal notebook and ripped out a page, which she said, contained the address and phone number for a friend, with whom the defendant believed she was cheating. She did not remember whether there was any other information on the page. When the defendant observed her put the page in her jacket pocket, he questioned what she had. She said nothing. He grabbed the hand holding the paper, which she kept in her jacket pocket. She crouched down to prevent him from taking it. He continued to grab her hand holding the paper as she resisted. As he pulled her hand, her resistance was such that the little finger on her right hand snapped. The complainant agreed that the defendant did not strike her, although she did not believe that he needed to get on top of her to retrieve the paper. She agreed that the little finger was broken because of the struggle and not from a purposeful act.

[8] The defendant expressed concern for the complainant’s welfare. He offered to take her to the hospital. She refused. She went alone to the hospital for medical attention.

Legal Analysis

[9] This is a case in which one witness testified for the Crown. The defence did not call evidence. As such the credibility and reliability findings are restricted to the Crown witness. The applicable law is that where there are credibility findings to be made, that are favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings: R v B.D. 2011 ONCA 51 and R v Marki 2021 ONCA 83.

[10] Although credibility and reliability are often mentioned together, they are different concepts. Credibility looks to whether the witness is being honest or is willing to speak the truth as the witness believes it to be. Reliability looks to the ability to accurately observe, recall and recount events in issue: R v H.C. 2009 ONCA 56 and R v Morrissey (1995), 22 O.R. (3d) 514 C.A.

[11] In assessing the complainant’s testimonial account, I must consider whether her evidence was inherently truthful, logical and consistent having regard to common sense, life experience and in particular what the evidence revealed about her.

Voyeurism and Distributing Intimate Images

[12] It was agreed that the contentious videos and photographs were taken on the defendant’s cell phone. The video marked as an exhibit depicts the defendant engaged in sexual intercourse with the complainant, standing behind her body as she is bent forward in a partially crouched position. The photographs adduced show her performing oral sex on the defendant. As well there is a photograph of the complainant’s vagina exposed while she is lying down.

[13] The defence argued that as a matter of logistics and common sense the complainant must have been aware of the defendant video recording and photographing their sexual interaction.

[14] As for the images of oral sex it was the complainant’s evidence that she had no idea that the defendant was taking photographs. She added for the first time that she might have used the illicit drug GHB at the time, recalling passing in and out of consciousness. She was unable to remember telling the police about being under the influence of drugs. The police had no notes of that, and it could not be confirmed on her video statement because the audio was corrupted.

[15] The defence further argued that the complainant knew the defendant was video recording their encounter of sexual intercourse as it should have been obvious in the way he must have held a cellphone camera. She denied the defence suggestion.

[16] She maintained that the photograph of her vagina was taken when she was either passed out from drug use or sleeping. She denied the defence suggestion of posing for the photograph.

[17] As a matter of logic and common sense I cannot say that her credibility was compromised in a way that was favourable to the defence. Essentially, she testified to being engaged in sex acts and illicit drug use. During that time, she was unaware that photos and videos were taken by the defendant. The court does not have a reason to reject her evidence of not consenting to the intimate images. Her evidence on this point should be accepted.

[18] However, the distributing of the sexual intercourse video is more difficult for the Crown to prove. There is no admissible evidence as to how the mutual friend obtained the video. The Crown argued that the only way is from the defendant. And there are different ways to share. But there is no evidence of the sex video being sent from the defendant’s cell phone. It is not the court’s role to speculate about how the sharing might have occurred. Moreover, the complainant was reluctant to get the friend, the alleged recipient, involved in this case. As such the absence of evidence does not assist this court in making a finding in favour of the prosecution.

Assault Causing Bodily Harm

[19] The complainant readily admitted to taking a page from the defendant’s private journal. And she did not intend to return it, despite his demands. Although her evidence was that the page contained details about her friend, there is no evidence that the defendant was aware of that. The only evidence is that he knew she took one of his private papers and she refused to give it back. The complainant readily acknowledged that the defendant only did what was necessary to take his paper from her hand. He did not strike her in any way. She further acknowledged that her pinky finger was accidentally broken. The complainant agreed that it was not a purposeful act by the defendant that caused the injury.

[20] The Crown argued that the defendant had no legal justification to the paper in the complainant’s hand because it was information about the complainant’s friend. The Crown’s argument is not only specious but fails to consider that the defendant’s only knowledge was the complainant took what belonged to him. The complainant did not tell the defendant what she took from his personal book. The only knowledge available to the defendant was that the complainant took his personal property.

[21] The law of defence of property is governed by s.35 of the Criminal Code. The essential elements of the defence were explained in R. v. Cormier, 2017 NBCA 10, paras. 47 – 50.

[22] The defence is engaged when one’s peaceful possession of property is impacted by another's actions regarding that property. Once the defence is triggered, any preventative act is justified, provided it is "reasonable in the circumstances".

[23] Section 35(1) contains four requirements that may be summarized as follows: peaceful possession; threat to property; the protective purpose; and reasonable response. In the instant case the defendant was in possession of his private journal in one of his packing boxes. It is not required that the defendant be in actual possession of the property. The defendant had a reasonable belief that his property was threatened by theft when the complainant took a page out of his journal. The defendant’s subjective purpose was to retake and retrieve his property. The defendant’s response was objectively reasonable in the circumstances. He did not strike the complainant as he pulled on her hand holding the paper to retrieve it. The complainant readily conceded the injury to her finger was an accident. I do not find that the defendant’s intentional application of force constituted a reckless disregard for the complainant’s safety. In the circumstances the assault causing bodily harm is not made out.

Criminal Harassment

[24] The final issue is with respect to the charge of criminal harassment. The Crown argued that when the defendant placed the tracker on the complainant’s car and surveilled her whereabouts, this caused the complainant to fear for her safety. However, there is no direct evidence on this point. She made no such statement when recounting how she found out about the tracker. The Crown pointed to the complainant’s testimony about fearing the defendant would find out – possibly through another tracker – which hospital she attended for her injured finger. When the defendant offered to take her to the hospital she refused. The complainant provided an explanation of the steps she took to ensure the defendant did not know where she went for medical treatment. Her actions were more consistent with not wanting the defendant’s physical company at the time, as opposed to any fear for her safety or a fear that harm would befall her. In fact, she engaged in a lengthy text message exchange with him after receiving treatment at the hospital. I cannot conclude that she feared for her safety because of a tracking device.

Conclusion

[25] The burden of proof in a criminal trial always rests with the Crown. It is proof beyond a reasonable doubt in relation to each of the offence's essential elements. A reasonable doubt is not based on sympathy for or prejudice against anyone involved in the trial. It is a doubt that logically arises from the evidence, or the absence of evidence: R v Lifchus, [1997] 3 SCR 320 at para 39.

[26] Having considered all the evidence and the absence of evidence, I am sure that the Crown has proven beyond a reasonable doubt that the defendant committed the voyeurism offences indicated in counts 1, 2, and 3 on the Information before this court. The charges of distributing an intimate image, assault causing bodily harm and criminal harassment are dismissed. The Crown did not proceed on the extortion charge which was previously withdrawn.

Justice D. Maylor