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 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

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: 2024 04 22 COURT FILE No.: 22-30004827 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

C.A.

Before: Justice Cidalia Faria

Heard on: February 15, 16, 2024 Reasons for Judgment released on: April 22, 2024

Counsel: Kostas Stratos.................................................................................... counsel for the Crown Daniel Varilone.............................................................. … counsel for the defendant C.A.

Faria J.:

I. Introduction

[1] CA is charged with criminal harassment for watching or besetting the residence of TK, the mother of his son, on October 9, 2022, causing her to reasonably fear for her safety. He was also charged with breaching a probation order.

[2] The Crown called both TK and JA, their son, as witnesses. With the consent of the Defence, the Crown also filed CA’s criminal record containing seven convictions for offences of violence against TK as well as the synopsis of those convictions as exhibits.

[3] On the second day of trial, as the Crown called no evidence on the existence of a probation order, he called on me to acquit CA of that breach offence. I did so on February 16, 2024.

[4] The Defence called no evidence.

[5] The Defence conceded date, jurisdiction, and identity. He also conceded that if the prohibited conduct was proven, then all the other elements of the offence would be proven including that TK was harassed by the prohibited conduct, CA engaged in the conduct knowing, recklessly or wilfully knowing she was harassed, the conduct caused TK to fear, and her fear was reasonable in the circumstances.

II. Issue

[6] Two issues must be determined. They are:

(1) Is JA’s recollection of his conversation with his biological father reliable?

(2) Has the Crown proven beyond a reasonable doubt CA was “watching” or “besetting” TK’s home.

III. Evidence

[7] CA was convicted and sentenced to the following offences victimizing TK:

2014-09-08 Forcible Entry 105 days jail Assault concurrent Assault concurrent Uttering Threats concurrent Uttering Threats concurrent Aggravated Assault 105 days jail (171 days Pre-sentence Custody) & 3-year Probation Order s. 109 Order for 10 years 2018-11-29 Utter Threats 90 days intermittent jail (9 days Pre- Sentence Custody) [1]

[8] The synopsis for these offences provides the following facts: [2]

• CA and TK met in 2002 when he was 40 and she was 16 years old. They started an intimate relationship soon after. They lived apart until their first son, born 2005, was two years old. They then moved into CA’s mothers’ home during which time TK both took care of their son and worked.

• In July 2013, CA became assaultive to TK.

• In August 2013 TK asked CA to buy their son shoes. He stated he would not. TK challenged him as CA was receiving income at the time. CA then pushed TK into the kitchen and then “repeatedly smashed her head off the edge of the windowsill”. CA pushed TK to the floor. She tried to get away. CA grabbed her, pulled her back into the kitchen and banged “her head off the kitchen floor 4-5 times.” CA placed his hands on TK’s throat and choked her saying “I will kill you before you leave. You belong to me” while she “frantically banged on the closet door in an attempt to alert neighbours”. TK saw her younger son JA [3] standing nearby before she lost consciousness. After an unknown amount of time, TK awoke on the floor of the kitchen, gasping for air and dizzy. She staggered to the living room where CA was watching television. She found JA in his room, called her mother, packed belongings, called a cab and left with JA and her older son while CA laughed at her. At her mother’s home, photos were taken of her injuries, including broken blood vessels in her eyes and face, and bruising to her throat and neck area. Medical records showed TK suffered hearing loss in her left ear due to the choking.

• On March 2, 2014, TK and CA arranged to exchange the children at her apartment. CA was to get the key from TK’s mother and tell TK when he was coming. At 9:05 a.m., CA attended the apartment with three-year old JA without notice. There was a chain lock on the door, he forced the door and broke it to enter the apartment. CA armed himself with a wooden bat and went looking for TK and her partner. They were asleep in the bedroom. CA tried to get into the bedroom. TK kept the bedroom door shut with her body. Her partner did the same. They called 911. CA struck the bedroom door with the baseball bat stating he was going to kill them both and used a racial slur regarding TK’s partner. As the couple waited for police in the bedroom, CA took some valuables and fled with JA to a nearby apartment where he was arrested.

• On December 16, 2105, while on probation with conditions not to contact either of his two children or TK, and not be within 300 metres of them, CA met with his probation officer. He was angry and hostile. He wanted property from TK. He said to the probation officer “When I see them, I will kill them…I want my stuff back, if I don’t get my stuff, something is gonna happen.” “I don’t care if I go to jail, you can tell her to keep hiding.” TK was told of the threats and was fearful. The probation officer reported the threats to police.

[9] Thirteen-year-old JA testified that on October 9, 2022, when he was 11, he was biking with two friends “by the school” when one friend told him his dad was looking for him as there was “a guy going around asking if he know J [4] and JA”. One of JA’s friends said “yes” to the man and went to tell JA that the man was waiting at the building.

[10] JA testified he replied, “but my dad’s [5] out with my mom”. JA went to the building and saw his biological father CA whom he had not seen since he was three years old.

[11] JA testified CA said, “long time no see”, looked at him “weirdly” making him feel “uncomfortable” and so JA stepped back. CA said “why you stepping back? I don’t bite.” CA asked how he was doing and how was school. Before JA left with his two friends, CA gave one of his friends $10. The three boys rode away to Dollarama and CA followed. CA gave JA a “mean look” and a “mean grin” before he biked away.

[12] When asked what else CA told him, JA testified he “told me that he seen my mom smoking on the balcony before”, “he was basically saying, well, I guess like I know where you live now and I.” “I know where you live now and I know that like, you’re safe. And he – and he said that I’ve seen your mom smoke on the balcony before.”

[13] When JA was asked if CA told him to tell his mother anything, he responded “Yeah, he did.” But he forgot what.

[14] JA was concerned “for his mom’s like, safety, because I didn’t know if he was going to do anything to my mom.” He did not tell his mother that because he forgot as “there was like so much going through” his head when he was telling her what happened.

[15] After having his memory refreshed, JA testified CA “basically said I know where you live now, he said basically to tell your mom that like, like I know you guys, I know where you guys are now and stuff,” but he did not obey CA and tell his mother. He testified he forgot, he was “scared” and did remember exactly what he did tell his mother. He knew his mother had a safety plan if he were to see his biological father, but he forgot what it was.

[16] This conversation with CA was by the school building that was within viewing distance of the balcony of JA and TK’s residence.

[17] When asked if his mother smoked cigarettes on the balcony, JA responded she did not as it is was fire hazard and he had never seen her smoking there.

[18] In cross-examination, JA testified CA mumbled a few unintelligible words under his breath and that the conversation was short. However, he had told the police officer on October 9, 2022, that the conversation had taken “at least an hour” and was guessing about that estimate. He testified he had not told his mother about the conversation with CA until after she came home, cooked dinner and they had eaten.

[19] When asked if his mother had “reminded” JA of what CA said, JA testified: “No, she never brought that up.”

[20] T.K. testified JA, born in 2010, is the younger of her two sons whose father is CA. She has custody of both children, and they are not in contact with CA. On October 9, 2022, she came home in the evening and noticed her son JA was very upset and looked worried. When she asked him if he was okay, she testified JA said “mom, mom, you’ll never believe or guess who was here.” She asked who, and he said “Leo”, the name he uses for CA.

[21] TK testified “and then from right there it kind of just brang (sic) back a lot of worrying for myself, and anxiety, trying to hold it all together, and he (JA) told me that they had a conversation”. They carried on the conversation upstairs, where JA “explained to me everything that he told me.”

[22] TK testified JA told her:

• CA had been looking around the neighbourhood for quite some time looking and asking if J, JA or TK lived around there.
• CA had paid one of JA’s friends to bring JA to him.
• CA knew where TK lived now.
• CA had seen her smoking on the balcony.

[23] TK called the police immediately. Both she and JA gave their statements to police independently.

[24] TK testified she smokes cigarettes. She goes downstairs to smoke if her older two children, J or JA are home to care for her younger children or she goes to the balcony to smoke if the older two are not home, so as not to leave her younger children unattended.

[25] In cross-examination, TK testified JA told her he had spoken to CA immediately upon her arrival home.

IV. Legal Principles

Onus/Burden/Presumption

[26] As in every criminal case, CA is presumed innocent. The onus rests on the Crown to prove the essential elements of the offence beyond a reasonable doubt. The onus never shifts. Reasonable doubt is a doubt based on reason and common sense based on the evidence or lack of evidence. [6]

Credibility & Reliability

[27] Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. A credible witness may give unreliable evidence. [7] Accordingly, there is a difference between a finding of credibility and proof beyond a reasonable doubt. [8] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented. [9]

[28] In assessing each witness’ testimonial account, I must consider its internal consistency; its consistency with previous accounts; the significance of any inconsistencies; a witnesses’ interest in the outcome of the case if any; and whether an account is inherently logical.

[29] To assess reliability, I must consider the circumstances of the observer, the recollection of events over time, the intentional or unintentional tainting by other sources of information; a witness’ mental capabilities and limitations if any; their level of sophistication, and to a lesser degree the witness’s testimonial demeanor to name a few.

Evidence of Children

[30] I am mindful one of the prosecution’s witnesses is a child. The Supreme Court of Canada established a “common sense approach” to the assessment of the credibility and reliability of children’s evidence in B.(G). Though the standard of proof remains the same, this approach recognizes children are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to [their] mental development, understanding and ability to communicate. Absolute precision as to the details of an alleged offence is unrealistic and unnecessary. [10]

[31] Inconsistencies must be addressed. They vary in their nature and importance. Some inconsistencies are minor, others are not. Some concern material issues, others are peripheral. In a child’s testimony, particularly as to peripheral matters such as time and location, these inconsistencies must be assessed in the context of age and developmental stage. Courts cannot expect the evidence of a child to have the same cohesive quality of that of an adult. A flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. [11]

[32] A verdict of guilty may be considered both reasonable and lawful notwithstanding evidentiary inconsistencies of material matters, the presence of a motive to fabricate or concoct evidence, or delays in disclosure of the alleged offence. The job of the trier of fact is to assess the reliability of a witness’ evidence given all the evidence presented. [12]

[33] As I assess the evidence, I am mindful I may accept some, none, or all, of each witness’ account.

Criminal harassment

[34] The section reads:

s. 264 (1) 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

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be;

V. Analysis

[35] The Defence submits that JA’s evidence is unreliable because of inconsistencies. They are as follows:

(1) JA testified the conversation with CA was short but told the officer on the day of the conversation that it lasted at least an hour. When confronted with the inconsistency, JA testified he was guessing at the time of his statement and agreed he had been told by the officer not to guess.

(2) JA testified he told his mother about his conversation with CA after dinner, but TK testified JA told her about the conversation when she got home.

(3) JA first testified CA said JA was safe where he is living, then that CA did not say the word “safe”, then changed his mind and testified CA had said it.

(4) JA forgot exactly what he told his mother.

(5) JA testified CA told him to tell his mother he knew where they lived and he had seen TK smoking on the balcony before only after his memory was refreshed, and that he had not told his mother this because he forgot.

[36] I find the first four inconsistencies to be peripheral and of no significance to JA’s credibility or reliability, and I do not find the last piece of evidence to be an inconsistency of the following reasons:

(1) The amount of time a child estimates a conversation took at the age of 11 when giving his statement, or 2 years later when he testifies at the age of 13, is of no consequence when the issue is whether where the conversation occurred, its purpose, and its content.

(2) Similarly, it is of no significance if JA told his mother after dinner as he testified, or as soon as he saw his mother as she testified, when again, the issue is where the conversation occurred, its purpose, and its content.

(3) JA’s inconsistency as to whether CA used the word “safe” during the conversation is irrelevant. This is particularly so given CA said he “did not bite”. JA felt “uncomfortable”. JA was aware his mother had a safety plan, he was concerned about his mother’s safety, and the concept of safety was on his mind, whether CA said the word or not.

(4) Given JA was sought by CA in his own neighbourhood, met him unexpectedly, had not seen him since he was 3, was “scared”, “uncomfortable” and concerned about his mother’s safety, and had “so many things like, going through (his) head when (he) was telling (his) mom”, it is logical that JA would not remember everything he told her.

[37] JA did not remember if CA had told him to tell his mother he knew “where they lived now” and he had seen TK “smoking on the balcony before”, until his memory was refreshed.

[38] It is unclear why the Crown did not file as evidence JA’s statement made to the police on the day of the incident, describing the incident, after having promised to tell the truth at the age of 11, pursuant to s.715.1(1) of the Criminal Code.

[39] The jurisprudence consistently articulates that such statements made in such circumstances by children captures the articulation of events closest in time to the events, which may be challenging for children to recall in court years later. Indeed, the Crown elicited JA’s evidence in a rather haphazard and clumsy manner.

[40] Regardless, JA’s memory once refreshed, was clear on this point and his evidence not shaken in cross-examination.

[41] Moreover, JA testified he had never seen his mother smoke on the balcony as it is a fire hazard. The significance of the comment is unknown to him, and only ascertained when TK testifies she smokes on the balcony if JA and his brother are not home, but her younger children are.

[42] In fact, the core of JA’s narrative was consistent, coherent, and logical. For JA, it was troubling that CA had come looking for him, that CA now knew where they lived and that his mother and he may not be safe, not that CA had seen his mother smoking on the balcony. Neither the key substance nor the narrative of JA’s evidence was shaken. I accept it as both credible and reliable.

[43] The second issue is whether the Crown has proven beyond a reasonable doubt that CA was “watching or besetting” TK’s home.

[44] Justice Healey in R. v. Dapena-Huerta stated the following:

29. “watching a place, without more, might be just as unsettling or harassing to a complainant than the situation in which an accused person besieges or otherwise actively engages with them in a disturbing way. The fact the word “or” exists between watching and besetting means that either can, alone, amount to an offence within the definition of s. 264.”

30. “…The accused, after all, may watch a place where a complainant happens to be without ever making eye contact with or even observing a complainant, or may watch that place in a way that the complainant only becomes aware over time or through chance. A woman’s ex-partner might sit in a car outside her residence watching who enters and exits, for example, without ever fixing his eyes on her. Yet once she learns of it, the conduct could cause her to feel harassed and fear for her safety. While ultimately the object of the offenders’ conduct must be the harassment of the victim or someone know to them in order to make out the offence, I do not agree that the actus reus of the offence can only be proven by an act or acts that overtly show watching of the person, as opposed to the place which that person happens to be. Such an interpretation is in my view, in accordance with the wording of s. 264(1)(c).

31. David Watt, in Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada, 2015) at p. 772, includes the following in the precedent instruction to be given for a charge of besetting or watching:

To beset a place means to be present at or near it in a troubling way.

To watch a place means to observe it with continuous attention.

32. These definitions assist in focusing the triers on the actions of the accused in relation to the place and his reason for being there, as opposed to the ultimate object of his interest, the victim.

33. The entirety of the circumstances and context plays an important role in determining whether besetting or watching has occurred within the meaning of s. 264(2)(c) of the Code. [13]

[45] I adopt Justice Healey’s view.

[46] The unchallenged evidence is that CA went looking for JA and his brother at JA’s school and paid a child to find JA. The school was within view of JA and TK’s residential balcony.

[47] In fact, when JA spoke to his mother at home, and told her about his conversation with CA, JA said CA had come “here”.

[48] It is also not in dispute that TK was not home at the time of the conversation, nor just before the conversation, and therefore could not have been smoking on the balcony, nor seen to have been smoking on the balcony at that time.

[49] The Defence submitted that CA may have simply and coincidently walked by TK’s home and seen her smoking on the balcony which does not amount to “watching or besetting” as required by s.264(2)(c).

[50] It may well be true CA observed TK smoking on her balcony in passing, but that is not the actus reus in this case. The illegal conduct is CA returning to the location of TK’s residential balcony and proceeding to look for a person known to TK, her son JA, paying to have him located, and then telling him that he knows where he and his mother live and that he has seen her smoking on the balcony before while in view of the very same balcony.

[51] I accept that CA told JA to tell his mother what CA knew and what CA saw, but even if CA had not given this instruction, the evidence is as Justice Watt described, CA was besetting TK’s home by being “present at or near it in a troubling way”.

[52] Regardless of whether CA’s original “watching” of TK “before” was incidental or purposeful, and regardless of it was in passing, or continuous, the actus reus is made out when CA returns to the place, in this case, TK’s residential balcony, which he now knows is her dwelling-house, or where anyone known to her, in this case her son JA, resides, and is at the school, in view of the residential balcony searching for JA, where in fact he happens to be.

[53] Whether CA instructed JA to tell his mother he knows where she lives and saw her smoking on the balcony, and I find he did, is not required to prove the charge, as CA’s conduct by returning to the location of TK’s residential balcony, and his reasons for being there, to find and speak to her son, constitute “besetting” for the purpose of s.264(2)(c).

[54] Though not referred to by the Defence in submissions, and thereby appearing to be conceded, to be clear, the Crown must also prove mens rea beyond a reasonable doubt.

[55] CA’s conduct must be assessed in the context of his relationship with both JA and TK. He had not been in contact with 11-year-old JA since he was 3. He noted JA’s hesitancy and fear when JA stepped back from him and told JA he did not bite. CA was aware of TK’s fear of him because of his 7 convictions of violence against her, and that, in his own words, TK, historically was “hiding”. Indeed, the Defence conceded CA’s criminal record and the facts underlying his convictions of violence against her made her reasonably afraid when she was told CA was by her home.

VI. Conclusion

[56] In conclusion, upon review of the whole of the evidence, I find the Crown has proven beyond a reasonable doubt that CA criminally harassed TK, by besetting her home.

Released: April 22, 2024 Signed: Justice Cidalia C.G. Faria

Footnotes

[1] Exhibit 3: C.A. criminal Record with convictions against T.K. The 2018 sentence was amended to delete a $25.00 Fine as this was in error.

[2] Exhibit 1: Synopsis for Aggravated Assault, August 15 to 31, 2013. Synopsis for Forcible Confinement, Threaten Death, Threaten Death, March 2, 2014. Exhibit 2: Synopsis for Threaten Death, December 16, 2016.

[3] J.A. was 3 years old.

[4] J. is JA’s older brother.

[5] JA testified he calls his stepfather “dad”.

[6] R. v. Lifchus, [1997] 3 S.C.R. 320.

[7] R. v. Morrissey, [1995] O.J. No. 639 (C.A.) at para 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at para 41.

[8] R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at para 47; R. v. J.W., [2014] O.J. No. 1979 (C.A.) at para 26.

[9] R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para 27.

[10] R. v. B.(G), [1990] 2 S.C.R. 30 at para. 48.

[11] R. v. B. (G.), [1990] 2 S. C.R. 30, at para. 48, and R. v. H.G., 2009 ONCA 56 at para. 26.

[12] R. v. Francois, [1994] 2 S.C.R. 827 (S.C.C.) at para. 14.

[13] R. v. Dapena-Huerta, 2017 ONSC 7531 at paras 29 – 33.