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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 01 10 COURT FILE No.: Brampton 998 24 311100327

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.R.

Before: Justice G.P. Renwick

Heard on: 09-10 January 2024 Reasons for Judgment released on: 10 January 2024

Counsel: R. Prihar................................................................................................ counsel for the Crown .................................................................................... The Defendant was Self-Represented

REASONS FOR JUDGMENT FOLLOWING THE TRIAL

RENWICK J.:

INTRODUCTION

[1] The Defendant was charged with nine offences arising from incidents allegedly involving his former spouse, the complainant. Essentially, he is alleged to have threatened her, criminally harassed her, and had contact with her contrary to several bail orders. His conduct is alleged to include threats made to the complainant’s Mother (count #9). During the trial, the prosecutor invited the court to dismiss counts relating to alleged contact contrary to an undertaking, which was not sufficiently proven (counts #3 and #7).

[2] During this brief trial, the complainant, her mother, and a police officer testified for the prosecution. In an earlier ruling given orally, following a voir dire to determine the issue of voluntariness, I ruled that a statement made by the Defendant to the investigating officer was admissible into evidence on the trial. Several exhibits were also admitted without objection. The Defendant did not testify or call any evidence during the trial.

[3] At the heart of it, I must determine whether the prosecution has proven the remaining allegations beyond a reasonable doubt. This will entail a consideration of credibility and reliability, the probative value of the evidence, and whether the prosecution’s high burden is met.

GOVERNING LEGAL PRINCIPLES

[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an alleged offence beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed any of the alleged offences, he will be acquitted of the charges.

[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during a trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence and I am not left with any reasonable doubt, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or some reasonable doubt remains, then the charge has not been proven to the required degree and an acquittal must follow.

[6] This case involves credibility and reliability assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify and communicate their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[7] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are significant or inconsequential to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[8] Admissibility and the weight attached to evidence are two distinct considerations. In addition to the testimony received, there are documents, recordings, and a statement that became admissible evidence, however, the probative value of each is not presumed. Like all evidence, a trier of fact must determine the value of the evidence and what, if anything, is proven by the evidence and to what degree.

THE EVIDENCE AND FINDINGS OF FACT

[9] In this part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, motive, and the witness’ ability to recall and communicate.

[10] I will not recapitulate all of the evidence received during this trial. Suffice it to note that I have used several opportunities during the trial and subsequent to the completion of the submissions to review my notes and to listen to parts of the digital recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony or evidence until all of the closing submissions were made, and my review of the evidence was complete.

[11] The complainant testified first. She testified about her marriage to the Defendant. They were together for seven years and have been separated for three years. They have two children together. The complainant struck me as earnest and someone trying to testify truthfully.

[12] She authenticated printouts of social media messages that she says she received on her Instagram account from the Defendant (exhibit #1). She recognized his account and the user: “i[…],” which is said to include the Defendant’s middle name, “Ro..” Among other things, the messages indicate:

You will bend over, and take my rod!

And then you will cook me a delicious meal.

And then I will bend you over again.

And you will suck my dick and swallow my light.

[13] The first exhibit includes three pages of similar messages. What remains unexplained on the evidence is the continuation of the receipt of these messages despite the notation on the bottom of each page:

You blocked this account

You can’t message or video chat with S.R. (i[…]).

[14] Exhibit #4 is a Facebook post that the complainant testified she also received around the same time as the Instagram messages in January 2023. The post reads:

A parable;

If you rape me physically,

spiritually, and/or emotionally,

how can we possibly make love?

If you pillage me, capitalize on

weaknesses that you sought to create,

how can we possibly have peace?

First, you are going to get fucked,

and I mean fucked. Then, after you

have received your just desserts

and you weep in humility and shame,

then and only then, can we make love

once again.

[15] The complainant also authenticated three voicemail recordings (exhibit #2) which she testified came from the Defendant on 23 April 2023. This was after she had received a family court Order providing her with sole custody of their two children.

[16] The voicemails were corroborated, according to the complainant, by photographs she took of the call log from her cell phone on 23 April 2023. The complainant testified that after the first two messages were left after 3:58 am, when the Defendant called back at 1:20 pm, she answered just long enough to tell him to stop calling before hanging up. However, at 1:24 pm, the Defendant left the third voicemail which was produced in evidence.

[17] The complainant recognized the Defendant’s telephone number and his voice in the three voicemail recordings. In the first voicemail message the Defendant refers to the then recent family court proceedings and demands to see his children, “if you don’t [let me], I will end your fucking life, end of story.” The second message is similar. He also refers to the complainant’s new truck, the fake authority of the judge who determined the family law matter, and how:

…I’m gonna torture you, slowly…you are gonna scream and wish for the day you were born…you are fucking dead.

[18] The last voicemail is brief:

Give me my children. I hate you so fucking much, bro….going to fucking kill you bitch, slowly, slowly.

[19] The complainant testified that she feared for her life and that is why she went to the police and reported the contact from the Defendant and the threats he had made.

[20] I believed the complainant’s testimony. It is largely supported by the voicemail messages which are aggressive, violent, and scary. The Defendant appears to be emotionally out of control in the recordings.

[21] Cross-examination was conducted by experienced s. 486.3 counsel. However, it did not get very far. Counsel was attempting to develop an understanding of the timing of the commencement of the family court proceedings. It was somewhat repetitive because the complainant claimed not to remember the dates and when that court matter was heard in her absence with only her counsel present on her behalf. For no apparent reason, the Defendant terminated the cross-examination of the complainant by the appointed counsel.

[22] I believed the complainant. She claimed to have difficulty remembering dates which is somewhat understandable. The voicemail messages referred to the family court custody issue and the timing of these messages supports the complainant’s testimony that this followed the granting of sole custody of the Defendant’s children to the complainant.

[23] The complainant’s mother also testified about messages she received from her former son-in-law, the Defendant. Exhibit #5 included screen captures and photographs of messages she received from the Defendant’s account, which included his profile photograph, on her Instagram account. The first of these messages threaten:

going to cast you into the hottest fire that you have ever experienced. And you are going to scream and gnash your teeth, begging for it to stop while I laugh!

[24] This was particularly frightening, she said, because the second message referred to something that the complainant’s mother knew to be true. She testified that before the Defendant met her daughter, his sister had passed away in a car accident with two friends and they had burned to death in the car. The second message seemed to refer to this:

ask the guy who fucked with my sister. How it felt while he burned alive in his car[.]

[25] The complainant’s mother also received Facebook messages she attributed to the Defendant. The first message appeared to be written as if her daughter would read it. The second message referred to an image the complainant’s mother had posted of her son playing with her grand-daughter. The message ended, “YOU ARE FUCKING DEAD!!!!!”

[26] There was no cross-examination of the complainant’s mother. The Defendant decided not to permit cross-examination by the s. 486.3 counsel.

[27] The complainant’s mother was apparently truthful and I believe her evidence.

[28] The final witness was police constable Atin Lal. He investigated the matter and telephoned the Defendant’s telephone number. He spoke with someone he believed was the Defendant. The officer testified that he was attempting to get the Defendant to turn himself in when he was told, “I’m going to kill them all. Call me S., not R.. I’m going to kill [name removed].” The officer wrote down these utterances verbatim. When asked where he was located, the Defendant allegedly told the officer, “I’m in heaven,” twice.

ANALYSIS

[29] The evidence led by the prosecution was almost entirely uncontradicted or unchallenged. Nonetheless, I have undertaken a review of the evidence with a critical eye to determine the weight and value of the evidence received during the trial.

[30] I accept as truthful the testimony of the complainant that identified that the social media messages sent to her in January 2023 came from the Defendant’s account. However, I have to be satisfied that the Defendant and not someone else using his social media accounts was the sender of the messages in question.

[31] This case involves circumstantial evidence. The Defendant is alleged to have written the messages sent to the complainant. There is no direct evidence who sent these.

[32] In order to be satisfied that the Defendant committed some of these offences, beyond a reasonable doubt, I must be satisfied that the only reasonable inference available in respect of the circumstantial evidence is that the Defendant was the sender of the messages in question. [2] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that individual circumstantial pieces of evidence may be insufficient on their own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its high burden.

[33] In this case, there is nothing about the timing of the messages in January which can assist to establish who wrote the messages. The tenor and content of the messages do little to establish the identity of the sender. These messages are unlike any of the other communications allegedly sent to the complainant or her mother by the Defendant.

[34] I am also troubled by the Instagram account upon which the messages are apparently recorded. The second page of exhibit #1 shows, “Instagram ([name removed]).” Over the last eight letters of that name, there appears to be a box. I cannot tell if this is something that goes to the authenticity of the messages or not. This causes me to have some questions about the origins of these messages.

[35] I am satisfied beyond a reasonable doubt that the testimony I accept establishes that the Defendant left the three voicemail messages attributed to him in April 2023. As indicated, exhibit #3 (the photographs of call logs) corroborates to some extent the testimony of the complainant in respect of the voicemail messages.

[36] I accept as accurate in all respects the unchallenged testimony of the complainant’s mother. Unexplained is the name at the top of the messages recorded in exhibit #6, “S.D..” However, the content of the second message refers to something posted by this witness (her son playing with her grand-daughter). The messages refer to the complainant’s attendance at family court and the decision granting sole custody to the complainant.

[37] I am satisfied that the only person in the world who could have written these messages is the Defendant. The timing of these messages, the content, and the tone of the messages are consistent. It is clear that the sender intended to threaten both the complainant and her mother in the messages left on the latter’s social media accounts.

[38] The reference to the Defendant’s sister’s death and the “guy” who “burned alive” satisfy me that the Defendant wrote the Instagram messages. The Facebook messages refer to “my daughter,” who had been photographed with the complainant’s brother and posted on the complainant’s mother’s Facebook account. Again, I am satisfied that the only reasonable conclusion that flows from the circumstantial evidence is that the Defendant is the author of the messages contained in exhibits #5 and #6.

[39] In respect of the statement to the police attributed to the Defendant, the result is mixed. While I am satisfied that the statement was voluntarily made, beyond a reasonable doubt, there is no concession that the Defendant made the statement. The evidence is lacking in terms of why the officer believed that the Defendant was the person he spoke with on the telephone. I am not satisfied that it is proven beyond a reasonable doubt that the Defendant issued the threat recorded by police. Had a recording of the phone call which was said to have taken place at the officer’s desk been produced, I may have been in a position to consider the voice of the speaker. Without that evidence or any evidence to satisfy me that the police officer was not mistaken respecting the Defendant’s identity, I cannot be satisfied beyond a reasonable doubt as to the identity of the person with whom the officer spoke.

[40] The certified copies of release orders produced into evidence (exhibits #7a and #7b) establish that only one release Order remained outstanding in April 2023: The Order of Justice B.E. Pugsley of 28 July 2022, cancelling and replacing the Order of Her Worship V. Fisher-Grant of 16 January 2021. This Order (like the one it replaced) prohibited contact between the Defendant and the complainant and remained in effect from 28 July 2022 until it was cancelled on 30 May 2023.

[41] Accordingly, on the evidence, I am satisfied, that count #1 relating to contact with the complainant on 23 April 2023 is proven beyond a reasonable doubt. The voicemail messages left that day conclusively prove this charge.

[42] Given that there is only proof of one release Order in effect on 23 April 2023, count #2 (contact contrary to a release Order) is not proven.

[43] I am satisfied beyond any reasonable doubt that the words spoken by the Defendant were meant to be taken seriously. He was extremely violent sounding in his messages. His threats to torture the complainant were reasonably perceived by her. I have no doubt in my mind that the Defendant intended to instil fear in the complainant on 23 April 2023. Count #4 is proven beyond a reasonable doubt.

[44] I am satisfied on all of the evidence that the only person who could have made the several telephone calls received by the complainant on 23 April 2023 where messages were left, or not, was the Defendant. In light of the repeated contact with the complainant on 23 April 2023, which continued even after the complainant responded and pleaded with the Defendant to stop calling her, I am satisfied that this conduct was on-going, threatening, and frightful. I am satisfied that this makes out the offence of criminal harassment (count #5).

[45] For the reasons already given above, I have a reasonable doubt about the author of the social media messages sent to the complainant on during the first week of January 2023. Counts #6 and #8 are not proven.

[46] I am satisfied beyond a reasonable doubt that the threat to the complainant’s mother was serious and intended to cause her to reasonably fear for her safety. I am satisfied that the Defendant made the threat “YOU ARE FUCKING DEAD.” Count #9 has been proven to the requisite degree.

CONCLUSION

[47] For these reasons, I find the Defendant guilty of counts #1, #4, #5, and #9 and not guilty of counts #2, #3, #6, #7, and #8.

Released: 10 January 2024 Justice G. Paul Renwick

[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [2] R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56.