Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 01 27 COURT FILE No.: Region of Durham 20-22035

BETWEEN:

HIS MAJESTY THE KING

— AND —

Brandon Boise

Before: Justice N.N. Baker

Heard on: 2023-01-12 and 2023-01-13 Reasons for Judgment released on: 2023-01-27

Counsel: K. Buker, counsel for the Crown J. Goldglass, counsel for the defendant Brandon Boise

BAKER, J.:

The Facts

[1] I heard testimony from four witnesses. Jeff Vanderbelt, Maurice Lawson, and Jessica Carter for the Crown and Ronald Boise called by the defence.

[2] I consider both the credibility and reliability of each witness. Credibility and reliability are different. Credibility deals with a witness’ veracity, reliability with the accuracy of the witness’ testimony. Accuracy engages the witness’ ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility on the other hand is not a proxy for reliability. A credible witness may give unreliable evidence.

[3] I remind myself to follow D.(W.) v. The Queen, (1991), 63 C.C.C. (3d) 397 SCC where Mr. Justice Cory for the majority stated at paragraph 28:

(1) First, if you believe the evidence of the accused, obviously you must acquit.

(2) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

(3) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[4] The principles underlying W.D. are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of crown witnesses. They have a broader sweep. Where on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favorable to the defence in the crowns case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear that it is not necessary for them to believe the defence evidence on that vital issue. Rather, it is sufficient, if viewed in the context of all the evidence, if the conflicting evidence leaves a reasonable doubt as to the accused’s guilt.

[5] I remind myself that I can accept some, all or none of a witness’ testimony.

[6] The Crown must prove each element of an offence beyond a reasonable doubt. The standard of proof beyond reasonable doubt is inextricably intertwined with the presumption of innocence. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. A reasonable doubt is not a doubt based upon sympathy or prejudice. It is based upon reason and common sense. It is logically connected to the evidence or absence of evidence. It does not involve proof to an absolute certainty. It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt, and more is required then proof that the accused is probably guilty. If I conclude only that the accused is probably guilty then I must acquit.

[7] The evidence of Ronald Boise is that of an alibi. He contends that he and his son were at their cottage property at the time of the alleged offence and that Brandon could not have committed the offence. If his evidence were believed, or left me with a reasonable doubt, then I must acquit.

[8] Ronald Boise tried to tell the truth, but it was clear throughout his testimony that his overriding concern was trying to provide a set of facts which exculpated his son’s actions. He minimized facts in an attempt to better help his son. His certainty faded in cross-examination. He initially indicated that his son never left his side, but later admitted that they slept in separate residences on the property. He acknowledged that Brandon may have been absent for 15 minutes at times. Brandon did not get to the cottage until 15-20 minutes after Ronald who arrived around noon. He concluded that Brandon did not leave because he believed he would have heard the vehicle leaving even though he would have no reason to focus on this and was busy readying the cottage for the summer. He provided a general description of the car Brandon was driving but did not know its make or model as he believed it belonged to Brandon’s mother.

[9] His testimony was shifting. There were significant internal inconsistencies. He demonstrated insecurity when providing details. He resisted telling the whole truth. I do not believe his evidence nor does it leave me with a reasonable doubt as to what happened.

[10] I turn to the evidence of Jeff Vanderbelt. He testified in a fair, open, and forthright fashion. He was not contradicted in examination-in-chief or cross-examination. He was largely a disinterested party and readily admitted what he remembered and what he did not. He could not remember exactly what Brandon was wearing when he saw him. He acknowledged that he did not recognize Brandon at first. However, he approached Brandon. Brandon stated “Jeff, it’s me, Brandon” and this helped him recognize Brandon. He got even closer and talked to Brandon. He was not a friend to Brandon but had interacted with him multiple times. He was sure that it was Brandon that day.

[11] Maurice Lawson also testified in a fair, open, and forthright manner. His evidence and Jeff Vanderbelt’s evidence were corroborative. His memory of events held up in cross-examination. He had interacted with Brandon many times. He recognized Brandon from previous interactions.

[12] Jessica Carter testified. She was not present at the time of the offence. Her testimony focused mainly on her connection to the property in question. She was pressed in cross-examination with a suggestion that she had hired someone to impersonate Brandon Boise and had lied in the past. She was unshaken by this. She acknowledged that she had been wrong in the past and freely admitted the facts of that event. She accepted things when she could be wrong. She corrected herself unprompted during examination. I find her a truthful and honest witness. I reject the defence suggestion that Jessica Carter concocted this whole event.

[13] I find the following as fact: On May 2, 2020, in the afternoon, Brandon Boise attended at 1551 Reynolds Road in Trent River, Ontario. This is the cottage property of Jessica Carter’s mother. It was purchased in 2015. Jessica would spend time there overnight with Brandon Boise during their relationship. From the end of the relationship in 2018, Jessica stopped staying overnight at the property. There was a camper trailer on the property and a house which was originally derelict. Since some time in 2020, after the allegation before the court, the house has been livable and Jessica Carter has slept over since then. From the end of the relationship in 2018 until the house becoming livable, Jessica would visit the property but not stay over. She visited the property less during this time but did attend it. The allegation occurs during this time. Brandon Boise was bound by the following conditions at the time of the offence:

(1) Do not be within 300 metres of any place where you know any of the person(s) named above to live, work, go to school, frequent or any place you know the person(s) to be (exceptions omitted)

(2) Shall not contact or communicate with the children Pearson Catherine Boise [date of birth removed] and Andersyn Jessica Boise [date of birth removed] and from attending within ten kilometres of any place Brandon Boise knows them to be including their school Brooklyn Village Public School, 25 Selkirk Drive, Brooklyn Ontario L1M 2L5.

(3) Do not be within 200 metres of any place where you know any of the person(s) named above to live, work, go to school, frequent or any place you know the person(s) to be (exceptions omitted)

[14] Based on the facts as I have found them, there is no evidence of contact or communication with the children or attending within the prohibited distance of anywhere he knows them to be. As a result, I acquit him of count 2.

Frequents

[15] Having found that Brandon Boise attended the address of 1551 Reynolds Road, the next question to be determined is if that location is one that Jessica Carter “frequents.”

[16] Neither counsel provided any caselaw regarding the interpretation of “frequents.”

[17] Merriam-Webster defines “frequents” as “to associate with, be in, or resort to often or habitually.”

[18] Stroud’s Judicial Dictionary of Words and Phrases 4th ed. defines “frequent; frequenting” as “to be in the habit of going there.” It goes on to quote Lang v. Walker, 40 S.L.R. 284 where Lord Kinnear said that to “frequent” a place “means not to be found there on a single occasion, but to visit the place often, to be much there, to resort to it often.” See also: Clark v. Reginam, [1881-85] All ER Rep 766.

[19] In R. v. Lamothe, Meredith J.A. in a concurring dissent considered the difference between a “frequenter” and a “habitual frequenter.” At p. 70 he noted that “Frequency may differ in degree and in character. It is not a superlative term; indeed, it seems to me obvious that there may be a wide margin between a frequenter only and a frequenter whose frequency has become habitual.”

[20] In Patterson v. The Queen, the Supreme Court of Canada used the words “habitual or frequent use” when describing the term “resorted to.”

[21] The Ontario Court of Appeal in R. v. Ohenhen equated the term “repeatedly” to “frequent” and found two incidences of contact sufficient for “repeated.”

[22] I adopt the following principles in considering the term “frequents”:

(1) A location which one “frequents” must be visited more than once.

(2) There is no single rate of attendance which determines frequency. Instead, a contextual review must be undertaken.

(3) The more intimate the connection between the complainant and the location, the more likely that frequenting is made out.

(4) “Frequents” captures locations beyond where the victim lives, works, goes to school, or is known to be; but at times will include those places.

(5) A habitual visitor is necessarily a frequenter, though a frequenter may be less than a habitual visitor.

(6) At the time of the offence, there must be an ongoing relationship between the party and the address which is frequented.

(7) Continuing attendance after the offence is not required, but may be informative of the relationship of the party to the address. A victim may stop frequenting an address after a breach out of fear or concern. This does not necessarily affect the character of the relationship to the location at the time of the offence.

[23] The defence suggests a singular purposive interpretation of “frequents” being to prevent actual contact between the accused and the complainant.

[24] There is more than one mischief being managed by this term. A complainant should be able to live free from concern that an accused may appear at places with which they have a connection. A complainant is entitled to feel safe. This term prevents further victimization by allowing safe spaces for a complainant to continue their life without needing to worry that an accused will interfere with their habitual activities.

[25] The defence proffered hypotheticals for the court to consider, such as attendance at a grocery store which the complainant regularly attends or a mutual friend’s house. While there may be issues of intent where an accused could not, or did not, know that a location was frequented, locations which are known to be attended by a complainant are barred for an accused to attend. It cannot be that a party bound by a term to remain a distance away from a location which an individual frequents can attend at locations they know are linked to a complainant based on the presumption that the party will not be there. This would directly interfere with the prevention of further victimization I have mentioned above. The term “frequents” is not overbroad.

[26] I assess the use and character of the location at 1551 Reynolds Road. It is a location which Jessica Carter is intimately linked with. It is her mother’s cottage property. Jessica attends regularly to visit, to perform maintenance and chores, and to check on the property. Her rate of attendance varies based on factors including the season, the weather, and her schedule. Brandon Boise knew of Jessica Carter’s relationship with the property.

[27] Jessica agreed that she visited the property “infrequently” when this was put to her in cross-examination. However, it is the court’s assessment which must determine whether she “frequents” the address. I find that she did frequent the address including at the time of the offence. She was in the habit of visiting for various purposes. She had an ongoing connection to the location. She went to the address before and after the allegation. She maintained this relationship to the property throughout the time of the allegation.

[28] I was provided with a partial transcript (pages 7-15) with regards to the condition imposed by Justice J.F. Adamson. In it, Brandon Boise asked questions about being allowed “to go to the school, knowingly [sic] Jessica is not there.” Justice Adamson replied that “there is nothing saying that you can’t go to their school and as long as you knew that she wasn’t there and that she’s not within 300 metres, there is nothing stopping you from going there except the school.” The conversation goes on to discuss attending the school when Jessica Carter is known to not be there. Justice Adamson reviewed the difference between knowing she is not there and attending the school at a time she might be there.

[29] Brandon Boise asks Justice Adamson if he could have an “endorsement basically saying he would be allowed a place she might be if he’s, she’s, if she, he knows she’s not within 300 metres.” Justice Adamson was clear that he would not make such an endorsement. The only exception to the distance would be if such an exception was made in family court. I have no evidence of such an exception being made.

[30] There is no confusion. The discussion focused on the school. I am left with a partial transcript. The discussion was whether family court could make an exception to allow Brandon Boise to attend the children’s school. It does not touch on any other location which she might frequent. It does not contemplate the location at 1551 Reynolds Road. Justice Adamson’s comment: “you’re going to have to go and convince them” made clear that an exception would need to be sought in family court. This exchange did not serve to leave any confusion in Brandon Boise’s mind. It leaves no doubt in mine.

Conclusion

[31] There is no doubt that Brandon Boise attended at 1551 Reynolds Road on May 2, 2020. This is a location which Jessica Carter frequents. Brandon Boise did so in violation of two orders. He is guilty of counts one and three on the information.

Released: January 27, 2023 Signed: Justice N.N. Baker