ONTARIO COURT OF JUSTICE
DATE: 2025-03-11
COURT FILE No.: Windsor 23-81105156
BETWEEN:
HIS MAJESTY THE KING
— AND —
BRIAN COBB
Before Justice S. G. Pratt
Heard on 27 February, 3 March 2025
Reasons for Judgment released on 11 March 2025
Jonathan Lall — Counsel for the Crown
Brian Cobb — On His Own Behalf
Pratt J.:
Introduction
[1] The Defendant Brian Cobb is charged with two offences: count 1 alleges he breached a release order by going to a prohibited place, and count 2 alleges he uttered a threat to cause bodily harm. The Crown relies on direct and circumstantial evidence to argue it has proved both counts beyond a reasonable doubt. The Defendant, representing himself, argues the wording of the condition he allegedly breached is unworkably vague, and that there is insufficient evidence it was he who sent the threatening email. In the result, he submits he should be acquitted of both counts.
[2] These reasons explain why I reach different conclusions on each count.
Admissions
[3] As the Defendant was self-represented, there were few admissions. On consent, the Crown filed a certified copy of the information and release order that relate to count 1. It was also agreed between the parties that the Crown would file an audio recording of a meeting that had been made by the Defendant. While it was, strictly speaking, evidence brought by the Defendant, the Crown agreed to make it part of its case to assist the Defendant. A transcript of the recording was also provided, which the Crown conceded was generally accurate.
Issues
[4] I see two issues in this case, one related to each count.
- Did the Defendant attend a place “frequented” by Maisam Al-Rais?
- Has the Crown proved beyond a reasonable doubt it was the Defendant who sent the threatening email?
Issue 1: Did the Defendant attend a place “frequented” by Maisam Al-Rais?
[5] On 22 August 2023 the Defendant was placed on a release order with conditions. The order was in effect at the time these charges arose. The first count of the information alleges the Defendant:
…did, being at large on a release order, fail to comply with a condition of that release order to wit: Do not be within 200m of any place where you know Maisam Al-Rais to live, work, go to school, frequent or any place you know the person(s) to be EXCEPT for required court appearances EXCEPT pursuant to a family court order made after today’s date… (Emphasis in original)
[6] It was not argued that either exception applied to the incident in question.
[7] The Crown argues that the breach is founded on the Defendant’s attendance at Ste. Anne’s Church in Tecumseh, Ontario. This location, he says, is one the Defendant knew the Complainant Ms. Al-Rais frequented. A review of the evidence and the circumstances of the Defendant’s relationship with the Complainant is necessary.
[8] The Defendant and Complainant were married in 2009. They share three children, ages 13, 12, and 8. According to the Complainant, the couple separated on 7 December 2021. Since then, they have been engaged in divorce proceedings.
[9] The Complainant was asked about her church attendance. She testified that in 2021 she was a member of the Ste. Anne’s parish. She and her children would attend Mass every Sunday. The Defendant would go with them when he was not working.
[10] After the couple separated, her attendance increased. She said that in 2022 and 2023, in addition to going every Sunday, she would also go two or three times during the week. In cross-examination, she specified these midweek attendances were in the evenings. She also confirmed that she never told the Defendant of her increased attendance. As far as she knew, he knew her to go only on Sundays.
[11] On Tuesday 31 October 2023, while governed by the release order, the Defendant visited the church. According to Katherine Marsh, one of the employees, he arrived over the lunch hour. He entered the main church building playing loud music on his phone and yelling that he wanted to speak to someone. Ms. Marsh came out of her upstairs office and went to the main floor. By the time she got to the Defendant, he was in the sanctuary of the church, near the altar. He was adamant that he wanted to speak to Father Patrick Beneteau. He told Ms. Marsh that he was investigating a child sex trafficking ring that he said was operating out of the church. She told him Father Beneteau was not available and he insisted on seeing a priest. She described the Defendant as intimidating and aggressive, and said he was using profanity in his communication with her.
[12] As Father Beneteau had been re-assigned out of Ste. Anne’s, Ms. Marsh offered to get the current pastor, Father Chris Gillespie. The Defendant agreed and said he wasn’t leaving until he spoke to someone. She texted Father Gillespie, hoping he was around.
[13] They then left the main church and went to another building on the property. This building housed the rectory and offices. There, they met with both Father Gillespie and another priest, Father Keith Morrison. Together, they entered Father Gillespie’s office for a meeting.
[14] In that meeting, the Defendant told the others about an investigation he’d commenced. He told them he was a member of law enforcement, specifically with Border Services. He was concerned his wife was being prostituted as part of a larger sex trafficking ring. He provided Father Gillespie with extensive information he said he’d obtained through research.
[15] The substance of that meeting was provided to the Court in the form of the audio recording made by the Defendant at the time. It largely corroborates Ms. Marsh’s evidence. At the end of the meeting, the Defendant asked for Father Gillespie’s email. He declined to provide it, but the Defendant was given the general Ste. Anne’s email. The Defendant told the others to expect an email, which he called a “Notice”.
[16] I observe that at no time during his attendance on 31 October did the Defendant ask to see the Complainant or ever suggest that he expected her to be there.
[17] The Crown argues that since the Defendant knew the Complainant was a regular churchgoer, the church was a place he knew her to frequent. The release order barred him from being within 200m of any place he knew her to frequent. By attending the church, he was violating that order.
[18] In support of their position, the Crown relied on the case of R. v. Boise, 2023 O.J. No. 516 (C.J.), a decision of my brother Justice Baker. In that case, the defendant was prohibited from going within 300m of anywhere he knew the complainant to frequent. It was alleged he visited a cottage property owned by the complainant’s mother. At the relevant time, the complainant visited the property regularly to perform maintenance, but was not present when the defendant attended. The question before the Court, therefore, was whether the property was a place the complainant frequented, regardless of whether she was physically present when the defendant went there.
[19] Justice Baker reviewed dictionary definitions of “frequent” as there appears to be no appellate or trial court guidance on the issue. In the end, the Court laid out seven principles to summarize just what the term means. In essence, the term requires repeated attendance, though that attendance need not be often. There must be some kind of relationship between the person and the place at the time of the offence, and the more intimate the connection between the person and the location, the more likely that frequenting will be made out.
[20] The Court rejected the argument of defence counsel that the condition was meant to prevent contact between defendant and complainant. Rather, the condition had as its aim the creation of safe spaces where the complainant would not have to worry about running into the defendant.
[21] There is an attractiveness to the position taken in Boise. Certainly, Parliament has consistently emphasized the need to protect victims of crime and ensure their safety. The wide net cast by this definition of “frequent” could be seen to achieve those objectives.
[22] With the utmost of respect to my learned colleague, I cannot accept the definition of frequent as laid out. In my view, the net is simply too wide. As defined, it would create vast, amorphous no-go zones that a defendant would be in constant danger of breaching. This is all the more concerning when a radius is added to a frequent condition. In the present case, the Defendant was barred from attending within 200m of anywhere he knew the Complainant to frequent. Accepting for the moment that would include Ste. Anne’s parish, it would also include a portion of Tecumseh Road East and Lesperance Road. That is, the Defendant would not be permitted to use either of those streets within 200m of the church. He could not drive past the church, using two major thoroughfares in the town.
[23] Given the open-ended nature of the term, the Boise definition would also mean the Defendant could not go within 200m of the grocery store he knows the Complainant has attended in the past. It would bar his attendance at or near any shopping centres or offices he knows she has been to more than once. It would be extremely difficult for the Defendant to live in the same town as the Complainant under such a condition.
[24] The Boise definition specifically rejects any knowledge element on the part of the Defendant. Attendance at a time when he might not expect the Complainant to be there, or even at a time when he would know conclusively that she isn’t there, would still be prohibited. For example, if the Defendant knew the Complainant was out of town, he still could not attend any place she went to repeatedly. The church, grocery store, shopping mall, and other places would still be off limits. In my view, this does not protect the Complainant; it is a punitive restriction on his liberty with no reasonable basis. That restriction is an even greater unjustified incursion on his freedom when the radius element is added in. It is not inconceivable that a person could be charged with breaching such a condition for being anywhere near a complainant’s typical route to work. If the Complainant habitually drove past the intersection of Tecumseh and Ouellette Avenue, for example, that would meet the Boise definition of a location she frequents. The Defendant would be barred from attending within 200m of that intersection, or any other location she passed each day. This is not to say police would likely charge someone for driving past such a location, but the point is that under the Boise definition, they could.
[25] To make the frequent condition reasonable, or even practically workable, there must be a knowledge component. I note that the condition in the release order that follows the frequent condition states, “or any place you know the person(s) to be”. This imparts a knowledge requirement. The other prohibited locations, i.e. places the Defendant knows the Complainant to live, work, or go to school would not need such a requirement as it is reasonable to expect the Complainant would be present at her residence, school, or workplace much of the time. The concept of frequenting, on the other hand, is potentially so wide and undefined that making the breach of it effectively an absolute liability offence is inappropriate and unjustified.
[26] In my view, attendance at a location known to be frequented by a complainant requires some risk that the complainant be present, or at least that they be indirectly affected by the person’s attendance. The entire point of a non-attendance condition is to avoid contact between the parties. It is not meant to create a network of bubbles a defendant can never enter regardless of where the complainant might be at any given time.
[27] The problem is still more acute when a frequenting condition is added to a release order. At that stage of a proceeding, a defendant is still presumed innocent. An argument might be made that such a condition is appropriate in a probation order, after a defendant is convicted and the risk they pose to a victim has been proven. That is not the case when charges are still outstanding. A defendant’s liberty interest must surely be recognized and not unreasonably restricted when they still bear the presumption of innocence.
[28] In the present case, the Defendant brings up what I see as another valid point: the property in question in Boise was a private residence. In this case, it is a church. I see a difference between a private location and a public one. Attendance at a private residence where a defendant knows the complainant has gone regularly would almost always carry with it the risk of contact. I’m not persuaded attendance at a public building would necessarily carry the same risk.
[29] On the evidence I heard, the Defendant knew the Complainant attended Ste. Anne’s each Sunday. While her attendance increased after their separation, the Defendant did not know that. At most, he may have known her parents sometimes attended morning Mass during the week. When he went to the church on Tuesday 31 October 2023 at mid-day, there was no reasonable risk that he would encounter the Complainant. His business at the church that day underscores that he did not go there with any intention of seeking out the Complainant. He wanted only to speak to a priest. There is no evidence he intended to see the Complainant that day, or that he was trying to locate her at the church.
[30] A breach of a frequenting condition requires more than mere presence. Context is important. There must be some reasonable risk of contact. To hold otherwise makes the condition unworkably broad and punitive.
[31] On the evidence in this case, I find there was no such risk when the Defendant attended Ste. Anne’s church that day. He will be found not guilty of count 1.
Issue 2: Has the Crown proved beyond a reasonable doubt it was the Defendant who sent the threatening email?
[32] Count 2 alleges the Defendant sent a threat to cause bodily harm to Chris Gillespie by email. The main argument advanced by the Defendant was that the Crown had not shown he was the actual sender of the emails in question. While it did come from an email address he owned, he argued the Crown did not show exclusive opportunity on his part. There should be a reasonable doubt that perhaps someone else with access to the email account was the real sender.
[33] The email in question was one of several sent from briancobb13@xxx to steanne@xxx. The time stamps on the emails indicate they were all sent the night of 1 November 2023, at 8:31pm, 9:07pm, 10:05pm, 10:33pm, 11:11pm and finally at 11:46pm. The portion of the email relied on by the Crown as being a threat to cause bodily harm was in the fifth email sent, at 11:11pm. It included the following:
YOU FUCKING TOUCH MY CHILDREN, or any CHILDREN you can expect your cock shoved down your fucking throat after I stick a 4” by 4” piece of would [sic] up your ass and make you stay alive for a week or more!
[34] It was not disputed that the words used constitute a threat. A conditional threat is still a threat (see: R. v. Ross, 26 C.C.C. (3d) 413 (Ont. C.A.)). The threatened course of action would clearly amount to bodily harm. I find as a fact the statement included in the fifth email constitutes a threat contrary to s. 264.1(1).
[35] In his closing argument, the Defendant submitted that as he’d been incarcerated since arrest, he had not had the chance to see if any of his accounts had been compromised. He also said in argument that the Complainant had access to his accounts and that perhaps she was involved in sending the emails.
[36] The Defendant did not call evidence in this trial. When he first said he did not want to do so, I took the opportunity to ensure he was making an informed decision. I advised him firstly that the decision to testify or call evidence was entirely his. No one could force him to abandon his right to silence, which right persisted throughout the trial. Testifying or calling evidence was, however, his opportunity to get “his side” before the Court. If he elected not to testify or call other evidence, he could not introduce new assertions in his argument. The Defendant advised me he understood. In fact, it was after this exchange that he had discussions with the Crown that resulted in the Crown filing the audio recording as part of its case. It is clear to me he understood that if he wanted to get evidence before the Court, this was his opportunity. Aside from giving the recording to the Crown to file, he made no other attempt to provide evidence at the trial.
[37] He did, however, put other emails to one of the Crown witnesses in cross-examination. These emails were marked as Exhibit A on the trial as the witness was not able to identify them conclusively. They do not, therefore, form part of the evidence I can consider. On their face, they appeared to be emails sent from the Defendant’s email account, but on dates when he was in custody. The implication was that, as emails were sent from that account at a time when he wasn’t able to access it, other people could have had that access at the time the threatening email was sent. The difficulty with that position is these later emails were never authenticated. I also heard no evidence that the Defendant did not have access to the email account while in custody. It was never asked of the Complainant whether she had access to his email account. Assertions of a lack of access to email while in custody, or of the Complainant or someone else having some level of control over the Defendant’s email, are not part of the trial evidence.
[38] In the result, I do not consider the later emails in reaching a verdict on this count. I do consider the possibility that someone other than the Defendant may have sent the email in question, but only in the context of the burden being on the Crown to prove the Defendant was the sender beyond a reasonable doubt. The Crown conceded that it is possible for the non-owner of an email address to have access to it.
[39] To prove the Defendant was the sender, the Crown relies on circumstantial evidence. There is no direct evidence that the Defendant sent the email and so the Crown must point to surrounding circumstances to establish this fact.
[40] In the case of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 the Supreme Court of Canada summarized how circumstantial evidence should be used by a trier of fact. At paragraph 30, Justice Cromwell stated:
It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences.
[41] Guilt must be the only reasonable inference to be drawn from the evidence. If other inferences that point away from guilt are present, either based on the evidence or on a lack of evidence, the Crown will have failed to prove guilt to the criminal standard.
[42] Applied to the present case, has the Crown proved that the Defendant’s personal authorship of the threatening email is the only reasonable inference available to be drawn? In my view, the answer to that question is yes. I will explain why that is.
[43] I begin my analysis by recognizing that no one piece of evidence in a trial should be viewed in a vacuum. This is especially so when considering circumstantial evidence. While the Crown relies on one email to substantiate the charge of uttering a threat, it put into evidence six emails in total. The alleged threat is found in the fifth email. In determining if the circumstances only reasonably point towards guilt, I must consider all the emails together with the situation that preceded them.
[44] At the meeting between the Defendant and the church staff on 31 October, the Defendant referred to a fear that his wife, the Complainant, was being prostituted by a sex trafficking ring. He said he’d found evidence of her participation in pornography by locating a video he said she was in, but said that in the video, she’d been wearing a mask.
[45] In the sixth email sent to the church, the sender included seven photographs. In five of the seven, a woman can be seen wearing a black mask. All photos show either nudity or explicit pornography.
[46] In the meeting, he also referenced Cheryl Hodgkin, whom he identified as the Complainant’s family lawyer. He told church staff that Ms. Hodgkin was likely an Israeli intelligence agent who was involved in the ongoing mishandling of his divorce proceedings, with the complicity of the Superior Court of Justice.
[47] In the fifth email sent to the church, the sender refers to Ms. Hodgkin twice, once regarding a claim that she was abducting children and once referencing her law firm and accusing her of abducting immigrants.
[48] In the sixth email, in a passage where individuals’ names are repeated many times, the name “Hodgkin” appears twice and “Hogdkin” appears once.
[49] In the meeting, the Defendant refers to a cult called “sanctum” or “6309”. He also said the people responsible for the sex ring get paid through “963”.
[50] The first email mentions a group called either Sanctum or 369. The second email is a pasted excerpt from the Criminal Code followed by pages and pages of “369” repeated over and over. The third email includes an attachment that goes into significant detail describing the significance of the numbers 3, 6, and 9.
[51] In the meeting, the Defendant made extensive mention of the stock market and the issuance of shares and statutory instruments.
[52] In the first and sixth emails, the sender references financial markets and securities fraud.
[53] At the end of the meeting, the Defendant asked for Father Gillespie’s email address. As I noted above, that request was declined but the Defendant was given the general email for the parish, which was steanne@dol.ca. At page 27, starting at line 21 of the transcript of the audio recording, the Defendant says the following:
BRIAN: So, so, okay, so I’m gonna be sending you guys notice. So what, uh, what email address would you prefer me to use? I would-, I am, I’m asking out of respect because the notice I’m gonna send is gonna be like, pretty heavy and it’s gonna, it’s gonna go to a lot of people.
[54] After Father Gillespie told the Defendant he wasn’t comfortable giving him his own email address, the Defendant said this at page 27, line 29 and onward:
Well, I won’t, I won’t give you it-, it’s not-, I’m not serving you in particular, you’re just the one that receives the notice it’s actually I’m serving Pope Francis, so you’re gonna have to get it up to the Pope.
[55] The first email received by the church bears the subject line: “URGENT NOTICE – SURRENDER”. It was directed towards Pope Francis and King Charles III.
[56] (I pause to note that, having listened to the audio and read the transcript, I find the passages cited above, and those noted below, to have been transcribed correctly.)
[57] The pastor of Ste. Anne’s church is, as I’ve said, Father Christopher Gillespie. The second email sent repeats the name “Father Kris” a total of eighteen times in the subject line. In argument, the Defendant submitted that the spelling of that name called the meaning of the emails into question as Father Gillespie spells his name “Chris” and the emails refer to “Kris”. I would only note that at no point in the meeting, at least as reflected by the recording or any other evidence, was the Defendant ever given Father Gillespie’s name in writing. He would not have known how Father Gillespie spells his first name.
[58] The fourth email refers to “Kris Kringle”. It includes a series of questions. Among them were:
You seemed to know quite a bit about me, for never having met?
You seemed very concerned about my EMPLOYMENT STATUS, like you knew something, do tell?
[59] At various points in the transcript, Father Gillespie asked the Defendant questions about his status as a law enforcement officer.
[60] The sender then writes:
You mentioned something that was curious to me, about HOW DID I KNOW IT WAS STE ANNE? And not another CHURCH, which led me to look into the document closer.
[61] At pages 17 and 18 of the audio transcript, Father Gillespie questioned the Defendant about how he came to the conclusion that the sex trafficking ring was operating out of Ste. Anne’s church.
[62] The fifth email, the one with the allegedly threatening comment, began with the following, in multiple font sizes:
KRIS KRIS KRIS did you fuck the Whore of Babylon? MA SI Am Is Ra Al ?
KRIS KRIS KRIS KRIS KRIS KRIS, DO YOU KNOW WHO I AM?
KRIS KRIS KRIS KRIS KRIS KRIS KRIS KRIS KRIS
[63] After stating the name Kris many times, the sender went on to make the comments on which the Crown relies. Further, the first line would seem to include a thinly-veiled reference to the Complainant, whose name is Maisam Al-Rais.
[64] Considering the timing of the emails and their content, I find as a fact that all were sent by the same person. They were sent in quick succession, and all relate to the same subject matter. They were clearly all sent by the same author.
[65] Taking all the evidence into account, the idea that anyone other than the Defendant sent the threatening email is not a reasonable inference. The Defendant told church staff they would be receiving a “notice” and asked for an email address. The next night, the email address the Defendant was given received an email entitled “URGENT NOTICE – SURRENDER”. The subject matter of the emails was connected to and expanded upon the Defendant’s claims made at the meeting. The fourth email makes specific mention of the meeting. The other emails reflect the same or similar topics the Defendant spoke of at the meeting. The notion that someone other than the Defendant would send the emails, at that point in time and with that content, is an unreasonable inference.
[66] The Crown does not have to negate every possible competing inference. They need only show beyond a reasonable doubt that guilt is the only reasonable inference available. In my view, they have done so.
[67] I therefore find as a fact that the Defendant sent all six emails. In particular, he sent the fifth email which included the threat.
[68] The Crown has proved the Defendant’s guilt on count 2 beyond a reasonable doubt.
[69] The Defendant will be found not guilty of count 1 and guilty of count 2.
Released: 11 March 2025
Signed: Justice S. G. Pratt