His Majesty the King v. Ralph Hall, 2024 ONCJ 191

ONTARIO COURT OF JUSTICE

DATE: 2024 04 18 COURT FILE No.: Windsor 21-5995DV

BETWEEN:

HIS MAJESTY THE KING

— AND —

RALPH HALL

Before: Justice S. G. Pratt

Heard on: 24 November 2023, 8 March 2024 Reasons for Judgment released on: 18 April 2024

Counsel: Nicole Lamphier................................................................................. Counsel for the Crown Ralph Hall..................................................................................................... Self-represented

Pratt J.:

[1] Jody Ralph Hall, hereinafter the Defendant, is charged with three offences: two counts of breaching a release order by contacting the Complainant Lisa Metivier, and one count of criminally harassing the Complainant. Initially the Defendant was represented by counsel but he completed the trial representing himself with the assistance of s. 486.3 counsel. He argues the evidence against him is too weak to prove the offences beyond a reasonable doubt. The Crown relies on the witness testimony, photographs, and surveillance video to claim that all three charges have been made out. These reasons explain why I agree with the Defendant.

Admissions

[2] At the outset of trial, the voluntariness of any utterances made by the Defendant was admitted, as was jurisdiction and the existence of a valid release order. The order was filed as an exhibit on the trial.

Issues

[3] There is really only one issue in this case: is the Defendant’s attendance at the Complainant’s residence on the various dates the only reasonable inference I can make based on the evidence before me? There is no direct evidence as no one testified to seeing the Defendant at her house. The Crown argued the nature of the items left at the house and the surveillance video both lead to only one reasonable inference: that it was the Defendant who went to her house in contravention of his release order and thereby also criminally harassed her.

[4] By way of background, the Defendant and Complainant met, according to the Complainant, around 2007 or 2008. They began a relationship that lasted until 2021. She said they dated on and off until then. In 2021 an incident led to the Defendant being placed on a release order. As I stated, it is agreed that order was in effect on the alleged offence dates.

[5] The first incident is alleged to have occurred on 8 September 2021. At around 550am that day, the Complainant said she exited her house and went to her car. She saw a small plastic container on the vehicle hood. Inside was a gift card to the LCBO in the amount of $35. She identified a photograph that showed the container and gift card. The photo was made Exhibit 2. On seeing the item on her car hood, she called police as the Defendant was not to be anywhere near her. She believed the gift card was from him for two reasons: 1) the amount was just enough to buy two bottles of her favourite wine, and 2) she recognized the handwriting on the gift card as the Defendant’s. The card had the following written on it: “Lisa”, “John Blaze”, and “35$”. In particular, the Complainant testified that she recognized the distinctive way in which the Defendant writes the letter E. The Complainant also testified to the Defendant frequently using different names, especially the name John. She testified to seeing his handwriting many times over the course of their relationship on cards and letters. She was confident the writing was that of the Defendant.

[6] If it is, that would necessarily mean that the Defendant was at her residence or that he had sent someone on his behalf to leave the items there. If I accept the items came from the Defendant, the only question is whether they represent direct or indirect communication. Either is prohibited by the release order.

[7] The second incident was alleged from 16 September, the Complainant’s birthday. On that day she said her son was at her house doing yard work. He went inside for a short time and when he went back outside he found a gift had been left. According to the photo filed as Exhibit 3, it was a small balloon, a birthday card, and two packages of chocolate: a bag of Hershey’s milk chocolate Kisses and a bar of Lindt white chocolate. There was no handwriting on any of the items.

[8] The Complainant was asked about the significance of the chocolate. She testified that “white chocolate” was the nickname the Defendant’s mother had for her and that “milk chocolate” was the nickname she had for the Defendant. She said he called her “dark chocolate”.

[9] She testified that she was not expecting any birthday gifts to be left at her door that day, and that no one mentioned leaving any such gifts for her. She surmised they had been left by the Defendant.

[10] A week after her birthday she had a security camera installed. It recorded video of the front area of her house and yard. It recorded the third incident, which took place on 15 October.

[11] The recorded video is seven seconds long. It is in black and white and is somewhat blurry. It features sound, but there is nothing in the audio that assists me in evaluating it.

[12] The video begins with a figure walking up the driveway. It appears the person is holding something in their right hand. They walk off the left edge of the screen at the one-second mark and re-emerge at the four-second mark. The figure walks down the driveway and makes it about halfway before the video ends. Parked at the end of the driveway at the curb is an SUV facing the right edge of the screen. Its passenger-side taillight appears to be illuminated.

[13] The Complainant was adamant that the figure in the video was the Defendant. She said she recognized the jogging suit he was wearing, as well as his Nike shoes and the way he walks. She was asked if she could see the Defendant’s face in the video and she responded, “not incredibly clearly”. She identified the vehicle in the video as belonging to her neighbour and did not attribute it to the Defendant.

[14] On that occasion, another gift was left on her car. It was a marijuana vape pen, a photo of which was made Exhibit 4. She testified the Defendant used to use and sell pens like that.

[15] Finally, the Complainant identified three photographs collectively made exhibit 6. The first photo showed the interior of a Valentine’s card. The second showed the interior of a birthday card. The third showed an envelope and a scrap of paper. All items, she said, bore the Defendant’s handwriting. She gave them to police.

[16] She also testified to receiving multiple early-morning phone calls in this period where the unidentified caller would immediately hang up. She suspected they were from the Defendant but could not offer any evidence to support that suspicion.

[17] The result of this ongoing contact was the Complainant feeling uneasy and frightened. He was on an order to stay away from her but was not obeying it. She was nervous he would show up again as he had on the prior occasions.

[18] In cross-examination, the Complainant agreed that on one occasion, pursuant to an arrangement made by police, she left the Defendant’s belongings on her porch. Someone picked them up and dropped off her belongings that had been in the Defendant’s possession. She wasn’t sure if vape pens were among the items brought to her house but disagreed that was how the vape pen seen in Exhibit 4 came to her.

[19] She agreed that the police did not take any of the items for analysis and that the only evidence that the handwriting on any of the exhibits was the Defendant’s was her word. Similarly, it was only her testimony that the Defendant would often use other names like John.

[20] The Defendant testified and denied leaving any of the items at the Complainant’s residence. He denied it was him in the security video. He said these charges were part of an ongoing plan to make his life difficult, hatched by the Victim and her friend Sheila Beaumont at the end of their relationship.

[21] Paulette Larosa, the Defendant’s surety as of 15 October testified that she was living with the Defendant at that time. She said she would leave for work between 545am and 615am, and that there was never a day when she noticed the Defendant’s car being absent. She said that had he left while she was sleeping, the house alarm would have loudly announced that a door had opened.

[22] Lastly, I heard from Shannon Pierce. He was the one who went to the Complainant’s residence with her belongings at police direction. He also picked up the Defendant’s belongings that had been left outside. He was clear that he went there on 21 August 2021 at approximately 130pm.

Analysis

[23] The Crown has not led any direct evidence that the Defendant committed these offences. The evidence is circumstantial. There is nothing inherently wrong with circumstantial evidence; it can support a conviction as well as direct evidence can. The way it must be viewed by a trier of fact is set out by the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33, [2016] 1 S.C.R. 1000, specifically from paragraphs 37-43. When the Crown relies on circumstantial evidence, the guilt of the defendant must be the only reasonable inference available to be drawn. If other reasonable inferences that point away from guilt reveal themselves, the Crown will have failed to prove guilt to the requisite standard. The Crown need not disprove any conceivable alternative inference. It is only if other reasonable inferences, based on logic and human experience and arising from the evidence or lack of evidence, arise that the Crown must disprove them.

[24] The evidence on count 1 is that when the Complainant went out to her car that morning, she found a plastic container with a gift card inside. She said it was signed by the Defendant, albeit with a false name. She said she recognized his handwriting. This is a person who had been in a relationship with the Defendant for many years. It’s reasonable to assume she knew what his handwriting looked like. She said he wrote her name, the false name “John Blaze” and the gift card’s amount. That is the only evidence on count 1.

[25] The Crown did not lead any expert evidence regarding the handwriting on the gift card and how it compared to the handwriting found in Exhibit 6. As the trier of fact, I can make my own comparison of handwriting samples in appropriate cases. Justice Hill considered this point in the case of R. v. Cunsolo 2011 ONSC 1349, [2011] O.J. No. 4204 (S.C.J.) at paragraph 243:

243 The prosecution may establish that a writing was made by an accused on the basis of an admission or agreement or, where disputed, by: (1) a witness acquainted with the accused's writing (2) expert evidence (3) comparative evaluation by the trier of fact without the testimony of a witness.

244 These proof processes, particularly the latter two described above, inevitably involve a comparison of unknown or disputed writing to a handwriting sample authenticated at trial to be genuine in the sense of a proved exemplar of the accused's writing, whether by admission or other persuasive proof.

[26] His Honour’s finding was affirmed by the Court of Appeal for Ontario at [2014] O.J. No. 2200.

[27] I remind myself to be cautious in making my own comparison of handwriting samples as I do not possess the expertise of a handwriting expert nor the specialized equipment such an expert might use (see: Cunsolo at paragraph 298). The first step in embarking on my own comparison of handwriting samples is to determine if there is a control sample I can use. That is, do I have a sample that has been shown to be from the Defendant? If I do not, I cannot attribute any other samples to him.

[28] In this case, the Complainant has provided samples she says are from the Defendant. These were filed as Exhibit 6. There are three such samples:

(1) The interior of a Valentine’s Day card, where “Happy Valentines Day to “my heart” Love you to pieces forever Jody” is handwritten (2) The interior of a birthday card, where “Happy Birthday 38th Babe! Kisses Jody 2012” is handwritten (3) An envelope and a piece of paper. The envelope has the Complainant’s name and address, and a return name and address handwritten on it. The paper is a portion of what seems to be a letter, with “Dec 4:18AM” and “my sincerest apologies!” handwritten on it. There is also another word I can’t decipher, and what appears to be the number 1 in a circle

[29] No one asked the Defendant if these samples were from him. The only evidence I have on that point comes from the Complainant.

[30] That the items in Exhibit 6 were written by the Defendant is not an element of any offence, nor is it directly tied to an element of an offence. The Crown does not, therefore, have to prove the writing in the exhibit is his beyond a reasonable doubt.

[31] On this discrete point, I find I can accept the Complainant’s evidence that the writing in Exhibit 6 comes from the Defendant. The items are of a personal nature, and two of them are signed “Jody”. The third bears the return name “C. Wallace”, but the writing is similar to the cards and the paper includes the words “my sincerest apologies”, which leads to the reasonable inference that the letter it came from was also personal. Overall, I find the Crown has provided acceptable evidence that the writing in Exhibit 6 came from the Defendant.

[32] Exhibit 6 shows some peculiar characteristics to the Defendant’s handwriting. First, there is his combination of upper-case and lower-case letters within words and sentences. For example, he only uses upper-case letter A regardless of where that letter appears. He does the same with the letter R. His writing of the letter E is also distinctive. Again, he only ever uses the upper-case form of the letter. Additionally, he writes the letter in an unusual way. The letter E has three short horizontal lines, at the top, middle, and bottom of the letter. The Defendant habitually connects the lower line with the middle line, and the middle line with the upper line, using visible diagonal lines between them. Often, he omits the middle horizontal line entirely.

[33] I now consider the writing on Exhibit 2. This is a photograph of the gift card allegedly placed on the Complainant’s vehicle at her residence.

[34] There is nothing distinctive in the way the name “Lisa” is written in Exhibit 2. If anything in that word stands out, it is the writer’s use of a lower-case A, which as I noted in the control sample is not something the Defendant employs.

[35] The writing of the name “John Blaze” does bear some similarity to the Defendant’s writing. In particular, the writer formed the E in Blaze in the same distinctive way the Defendant does, connecting the horizontal lines with diagonal lines. That said, the J in John is different from the J found in the control sample.

[36] Lastly, there is nothing in the writing of “35$” that allows me to make a meaningful comparison with the control sample.

[37] I am left, then, with one letter on the gift card being similar to the Defendant’s handwriting. The similarity is striking. But it is one letter. I am unable to say conclusively that the writing on the gift card came from the Defendant. The gift card is a crucial piece of evidence on count 1. The identity of the writer is an element of the offence. While I can certainly say that the Defendant being the writer of the gift card is a reasonable inference to draw, I cannot say it is the only reasonable inference. I have a doubt on that point.

[38] No one saw the gift card and plastic container being left at the Complainant’s residence. I heard no evidence that either item was ever tested for fingerprints. The only things tying the Defendant to the leaving of the items at the Complainant’s residence is the writing on the card and the Complainant’s testimony. I have a doubt that the writing came from the Defendant. I do not find that the amount of the gift card being just enough for two bottles of the Complainant’s favourite wine is sufficiently unique context to remove that doubt. I want to make clear that I do not find the Complainant to have been untruthful with the Court. I do say that taking all the evidence into account, the most I can say is I am very suspicious. That is not proof beyond a reasonable doubt.

[39] The Defendant will be found not guilty of count 1.

[40] The evidence on count 2 is twofold. There is a vape pen left on her vehicle the same day a figure is seen on security video walking on her driveway. The Complainant testified the type of pen is the type the Defendant used to use and sell. Based on that, and her identification of him from the video, the Crown argued the only reasonable inference is that it was in fact the Defendant who went to her house that morning.

[41] I have watched the video many times. In my view it offers little. It is very short, only seven seconds long. It is not in clear focus. The figure is seen for less than a second initially, and then for perhaps slightly more than two seconds before the video ends. The person appears to be wearing a light-coloured matching jogging suit and black shoes. The Complainant says it is the Defendant and she knows this because she recognizes the jogging suit and what she said were his black Nike running shoes. She also recognized his distinctive gait.

[42] As I said, I have watched the video many times. The most that can be said about the figure’s clothing is that it is light in colour and the top seems to match the bottom. Regarding the shoes, they appear to be black. There is no way any kind of branding can be observed from the video. The figure’s face is completely indiscernible. The Complainant’s testimony that the face is not incredibly clear is an understatement. All I can take from the video is that someone went up the Complainant’s driveway on 15 October and then walked back down a few seconds later. That is really all the video tells me.

[43] I think it is entirely possible the figure in the video left the vape pen on the Complainant’s vehicle. It’s also entirely possible the figure in the video is the Defendant. I cannot say either beyond a reasonable doubt.

[44] I heard from Shannon Pierce that among the items he dropped off at the Complainant’s residence were vape pens. The Defendant testified that he did sell the type of pen seen in Exhibit 4, and that the Complainant had some at his house. They were returned to her via Mr. Pierce. In cross-examination, the Complainant said she wasn’t sure if vape pens were among the items returned to her. The result is I can’t say beyond a reasonable doubt that the vape pen seen in Exhibit 4 was left in the manner the Complainant described. Again, I do not find the Complainant to have been untruthful, but when I view the evidence in totality, I find I am left with a reasonable doubt.

[45] In summary, I cannot say conclusively that the figure in the video is the Defendant. I also cannot say the pen in Exhibit 4 was left by the Defendant. I am left with a reasonable doubt on count 2. The Defendant will be found not guilty.

[46] Count 3 charges the Defendant with criminally harassing the Complainant by repeatedly communicating with her. To prove the count, the Crown relies on the whole of the evidence provided by the Complainant. That is, her testimony regarding the 8 September gift card, the 15 October vape pen, and also the 16 September incident where she said a balloon, card, and chocolate were left at her residence. Taken together, these incidents represent repeated communication by the Defendant.

[47] The information specifies a charge under s. 264(2)(b). That paragraph requires repeated communication rather than repeated following, besetting or watching, or engaging in threatening conduct. The key term in the paragraph is “repeatedly”.

[48] The question of what constitutes repeated action was considered by the Court of Appeal for Ontario in the case of R. v. Ohenhen, [2005] O.J. No. 4072. From paragraph 31, Justice Macfarland noted:

[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.

[49] To succeed on this count, the Crown must show more than one incident of communication. It points to three such incidents. The difficulty is I have a reasonable doubt that the Defendant was involved in two of them. That leaves only the third, from the Complainant’s birthday. I find I do not have to determine if the Defendant was responsible for leaving those items as even if he was it would only result in one communication with the Complainant. This would not satisfy the requirements of the charge laid.

[50] The Defendant will be found not guilty of count 3.

[51] All charges are therefore dismissed.

Released: 18 April 2024 Signed: Justice S. G. Pratt