Court File and Parties
COURT FILE No.: 23-47106975
DATE: May 15, 2025
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ABDOULIE CEESAY
Before Justice Fergus ODonnell
Reasons for Judgment
Ms. Claire Sweeney ......................................................................................... for the Crown
Ms. K. Ponte ................................................................ for the defendant, Abdoulie Ceesay
Introduction and Charges
Fergus ODonnell J.:
Abdoulie Ceesay is charged with criminal harassment in relation to Eunice Terry Mwara, his one-time girlfriend. The allegation is that the harassment took the form of repeated communication over a period of about the last week of November, 2023, starting with Mr. Ceesay attending twice at Ms. Mwara’s last known address and ending on 1 December, 2023, when Mr. Ceesay attended the apartment building of Ms. Mwara’s sister and her brother-in-law Munashe and tried to speak with her there. There were miscellaneous alleged electronic communications or attempts at communication over that period.
I heard from Ms. Mwara, her brother-in-law Munashe, a property manager from Munashe’s apartment building, the arresting officer and Mr. Ceesay. There was also a body of text messages, bank records, buzzer records and lobby video put before the court during the course of the trial.
Presumption of Innocence and Burden of Proof
What I am about to say is very well-known to all of the professionals in this case: the lawyers, the court staff and so on. It is in a sense the wallpaper of the criminal justice system; it is central to our daily working lives and we both understand its nuances and take those nuances as unshakeable reference points.
For others, however, those nuances are less clear. I refer here to many members of the public with no or limited experience with criminal courts, including many defendants, complainants and witnesses. It is important that those nuances be addressed up front.
The first point is that Mr. Ceesay is presumed innocent from the moment the charges were laid up until at least the point where I pronounce judgment.
The second point is that there is no burden on Mr. Ceesay to prove his innocence. We take that as a given.
The third point is that the only power that can change or overcome that presumption of innocence is if the Crown can prove that Mr. Ceesay is guilty of the charge against him. That burden lies entirely on the Crown, throughout every criminal trial.
The fourth point is that the Crown's burden is not light. The Crown does not just have to prove it is more likely that Mr. Ceesay is guilty than that he is innocent, or, put otherwise, that the evidence makes it 50.1 per cent likely that he is guilty. Instead the Crown must prove his guilt beyond a reasonable doubt, a standard that we do not assign a numerical figure to, but which is very, very high indeed. The standard is that high because as a society we believe fundamentally that it is far better if some guilty people are acquitted than it would be if innocent people were convicted. A criminal conviction is not a trivial matter.
In this case, Mr. Ceesay has testified. If I accept his denial of the charge as being truthful, then I must acquit him. Even if I am unsure of his denial, if his evidence creates a reasonable doubt, then I must acquit him. Even if his own evidence does not create a reasonable doubt, that is not the end of the matter and I must still ask if the Crown's evidence is strong enough to prove their case beyond a reasonable doubt—because the burden of proof is always on the Crown.
There is a final point that needs to be clear. It is sometimes assumed that a judge's job is to decide “what happened” in a given incident. That is not strictly speaking correct. There will be some trials, indeed many trials, where the judge does not, even at the end of the trial, know for certain “what happened”. The more precise description of the trial judge's role is that he or she must determine whether the Crown has proved their version of what happened beyond a reasonable doubt. A trial judge may feel strongly that the Crown's argument is true, but if it is not proved true to that very high standard, any lesser belief is irrelevant.
Summary of Evidence
I do not propose to go through all of the evidence including the buzzer details, lobby surveillance, call and text messages in exacting detail because such a recitation serves no purpose unless it is essential to explaining the outcome in the case. By way of summary, however, Ms. Mwara and Mr. Ceesay were in a fairly long-term relationship. While they were on a trip to Montreal, they were both arrested, in May, 2023, and he was detained in custody, but she was released on bail, with a condition not to have any contact with him. At this point, he gave her his debit card so that she would be able to buy a train ticket home to Hamilton from Montreal. She said that she had often held onto his debit card for him in the past and that other than her travel home and some licensing fees she had not used it during his prolonged incarceration in Montreal. These charges stem from a period of about a week immediately after Mr. Ceesay was himself released from jail in Montreal in late November and returned to Hamilton, during which time Ms. Mwara alleges that he criminally harassed her by attending twice at her residence, by contacting her repeatedly (but not always successfully) by telephone and social media and texts and by attending at her sister’s and brother-in-law’s residence while she was there one evening, seeking to speak with her. The Crown also alleges as evidence of the criminal harassment case that Mr. Ceesay’s car had been outside that apartment building earlier that evening and that Mr. Ceesay was arrested by the police nearby at the end of the night, after fleeing from his car parked just across the road.
It goes without saying that a criminal trial is to be determined on the basis of all of the relevant evidence adduced during the trial. It is an error to parse and separate every individual piece of evidence in isolation from the other pieces. That being said, I would make the following observations about some of the strands of evidence because while proof beyond a reasonable doubt can be comprised of many, many strands, some strands have so little value that they are lighter than air:
a. One piece of evidence I would rate as having zero value is the suggestion that Mr. Ceesay’s car was seen outside Ms. Mwara’s sister’s apartment building at some point earlier in the evening before he attended in the lobby and buzzed up. This evidence comes from Ms. Mwara’s brother-in-law, Munashe, who said he thought he had seen a car like Mr. Ceesay’s outside when he returned from work. The first frailty in this is that Munashe had nothing beyond a general conception of what kind of car Mr. Ceesay owned, namely that it was a silver or grey Mercedes and maybe a particular style, although he was vague on that. While that might have been a noteworthy piece of evidence in 1975 when such cars were much more rare than nowadays, without intending any disrespect to the Mercedes marque, silver and grey Mercedes are nowadays a dime a dozen; they are omnipresent and the evidence demonstrated that Munashe and Ms. Mwara’s sister lived in a building that by itself had at least twenty-one floors and was in a densely populated area. Connecting that “sighting” to Mr. Ceesay, when Mr. Ceesay had not himself been seen anywhere around the area or the car at that particular time would be nothing but sheer speculation.
b. Keeping with the Mercedes for the time being, Constable Kelly said that he and his partner had found that car, with Mr. Ceesay inside, outside Munashe’s apartment building, where Ms. Mwara was staying later the night of 1 December hours after Mr. Ceesay had attended the building lobby and buzzed up to try to speak to Ms. Mwara. He testified that Mr. Ceesay fled on foot almost exactly coincident with Constable Kelly’s partner stepping out of their cruiser to approach the Mercedes and I accept his evidence unreservedly. The Crown says this behaviour is consistent with Mr. Ceesay demonstrating consciousness of guilt, i.e. that he fled the police because he knew he had committed an offence, namely the criminal harassment. The strength of consciousness of guilt inferences based on flight will necessarily vary from case to case, based on all of the available information and triers of fact are understandably warned by the Supreme Court of the need to be cautious in going down that road because people can flee for many reasons, often for reasons that have nothing to do with their guilt of the offence before the court. In this case, Mr. Ceesay testified that he fled because of previous trauma with the authorities. He agreed in cross-examination that he did not always run when in the presence of the police, but he did always, “get very uncomfortable whenever I see them”, not because the police are bad, but because of his own history. That “history” involved Mr. Ceesay, as a journalist in The Gambia in 2015, being arrested for sedition for having texted his friends some material unflattering to the government, which material was already circulating on the internet. Mr. Ceesay said he was kept in custody for almost a year, during which time he was tortured almost daily resulting in liver enlargement and Post-Traumatic-Stress-Disorder. Mr. Ceesay’s affect was noticeably different on both occasions when he discussed this. In addition, his narrative did not rely solely on his own words, or on any theatrical skills on his part; to the contrary, Exhibit 9 on the trial was nothing less than an Amnesty International “Urgent Action” report calling on Amnesty members to pressure the government of The Gambia for Mr. Ceesay’s humane treatment and release. Very, very few persons claiming to have been the victim of official torture can come to court with Amnesty International in their corner to back up their claim of previous police abuse, but Mr. Ceesay did. I stress that this is in no way a negative reflection on the Hamilton Police Service, only a material piece of background concerning Mr. Ceesay. I would say that while the evidence of Mr. Ceesay’s flight is not lighter than air, it is in the circumstances not of much more substance than that.
c. Part of Ms. Mwara’s evidence of repeated communication on Mr. Ceesay’s part was her contention that a number of unanswered calls (shown in part of Exhibit 2) were in fact calls from Mr. Ceesay. This contention struck me as speculative and of little to no weight in relation to those particular calls originating from Mr. Ceesay. This, in turn, reduces the extent of provable contact by him during the relevant week.
Witness Testimony and Credibility
Both Ms. Mwara and Mr. Ceesay testified. It was drawn out of Ms. Mwara in cross-examination that her repeated communications with Mr. Ceesay while he was in jail in Montreal were all breaches of her release order, or put alternatively her promise to the court that she would have no contact with him. I think it was fair for Ms. Ponte to point to that as one factor to be considered in assessing Ms. Mwara’s reliability. At the same time, Mr. Ceesay’s substantial record for disobeying various court records justifies Ms. Sweeney’s submission that sauce for the goose is sauce for the gander.
Much of the Crown’s case is predicated on various linch-pins, each dependent on Ms. Mwara:
a. That she had broken up with Mr. Ceesay by telephone during October and made it clear that it was over between them. There is no documentary or independent evidence of this break-up. Mr. Ceesay has denied there was a break-up and the contents of some of his communications to Ms. Mwara are consistent with the break-up being news to him as of 1 December and the days before. Ironically, the Crown’s best evidence of Mr. Ceesay first hearing that Ms. Mwara did not want to see him came from Mr. Ceesay’s own evidence when he said that the occupant of Ms. Mwara’s last residence told him on his second visit, as late as 28 November, that Ms. Mwara did not want to see him. For example, when told by Munashe that Ms. Mwara did not want to speak with him, Mr. Ceesay stressed that it was him at the buzzer, as if he feared they thought someone else was calling up and asked “What’s going on?” and “Are you serious?” In a text around 9 p.m. on 1 December he had expressed his confusion: “whoa, did you say you don’t want to see me? Lol”. This would have been soon after Munashe had told Mr. Ceesay that on the intercom.
b. Ms. Mwara contended that Mr. Ceesay had used the pretext of needing his debit card from her on previous occasions, before the time of this offence. This assertion was not apparently made during the course of the investigation, only during her evidence at trial. However, the reasons Mr. Ceesay gave for needing his bank card are inherently plausible: he was just out of jail after a long-ish period in custody, he had lost his apartment during that period, he was couch-surfing, he was wearing the same clothes day after day, he needed his bank card to buy things, to arrange for an apartment and to get some cars on the road. As it was his debit card, not hers or a shared account, as she had been entrusted with it both for her benefit and his at the time of his incarceration and as he was impecunious, it seems entirely reasonable for him to want his card back, and promptly. It is Ms. Mwara’s business if she intended to break up with Mr. Ceesay, but if she is holding his only bank card, he is entitled to make efforts to retrieve it as he was the lawful owner. The Crown may have a valid point that he could alternatively have gone to the bank for a replacement card, but the fact that a person chooses one of two equally valid options over the other does not undermine their credibility. Indeed, as it turned out, when Mr. Ceesay disclosed the missing card to his bank and the fact that he had shared his PIN number with Ms. Mwara it did not end well for him, as the bank shut down his account. It also seems to me that Mr. Ceesay offered various alternatives for him to retrieve the card without contact with Ms. Mwara, such as by her leaving it at her workplace for him to pick it up or for her to send it in an Uber on the night of 1 December (after he attended her sister’s apartment lobby) to his former apartment building where he could wait for the Uber.
c. Ms. Mwara disclosed in her evidence that she was afraid of Mr. Ceesay because of two previous instances of violence by him towards her, one where he pulled her hair during an argument and another where he broke her mobile phone. I do not know one way or the other if those allegations are true; I do know that Mr. Ceesay says they are not. However, it is clear on the record that when the 911 operator asked about any previous domestic violence, Ms. Mwara said there had been none. She justified that by saying that her sister and brother-in-law were present and she did not want to disclose that history to them, which is not necessarily implausible but also not necessarily convincing. She also failed to disclose those allegations during a risk inventory done by the police. The only evidence of reasonable fear other than from Ms. Mwara was from her brother-in-law Munashe, but by the end of his evidence it was clear that what initially presented as a concern for safety was more accurately described as a desire to avoid any “drama” if Mr. Ceesay came up to the apartment.
d. It was contended by the Crown that Ms. Mwara’s credibility was enhanced by her acceptance under cross-examination of the fact that her repeated contact with Mr. Ceesay while in custody was a breach of her court order. I do not see how a person admitting an undeniable truth enhances credibility.
e. There is a discrepancy in the evidence about how often Mr. Ceesay buzzed up to Munashe’s and Ms. Mwara’s sister’s apartment on 1 December. Mr. Ceesay says it was only twice. Munashe says there were multiple buzzes that he did not answer, which Mr. Ceesay denies. There is no buzzer activity log for a period of time when Mr. Ceesay is near the buzzer (the log only begins around 8 p.m. for some reason, whereas the lobby video starts slightly earlier). The Crown says Mr. Ceesay’s hand gestures in the area of the buzzer panel (but a bit out of the line of sight of the camera) are consistent with Mr. Ceesay buzzing repeatedly. Mr. Ceesay says it was just him repeatedly searching the panel to find the relevant entry for Ms. Mwara’s sister and her husband Munashe. The problem in this scenario is that both explanations are equally plausible. That is a problem for the Crown because it is the Crown who bears the burden of proof. The evidence before the court does not give me any rational basis to choose between Munashe’s version of there having been multiple buzzes that he ignored and Mr. Ceesay’s assertion that he only buzzed twice, namely two times that he spoke with Munashe. Munashe may well be the more reliable, but I do not have a basis to choose between them (Even if Munashe is right, the existence of some additional buzzes by Mr. Ceesay that were ignored by Munashe does not tip the scales in relation to proving the elements of the offence).
Assessment of Conduct and Legal Elements
I have gone through these elements of the evidence to demonstrate the overall flavour of the case before me. Ultimately, I must look at the conduct Mr. Ceesay is alleged to have engaged in, the extent to which I am confident each of those allegations has been made out, the context in which he acted including the time frame, his knowledge of Ms. Mwara’s wishes, his situation having come out of jail recently, her being in most recent possession of his debit card, the importance of the debit card to him in the circumstances and so on.
This must all be assessed against the elements of the criminal harassment charge laid against Mr. Ceesay, namely:
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
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
- This offence requires the Crown to prove that:
a. Mr. Ceesay repeatedly communicated with Ms. Mwara;
b. He did so without lawful authority;
c. He did so with knowledge that she was harassed (or recklessly or wilfully blindly to that fact);
d. His conduct caused Ms. Mwara to fear for her safety or the safety of others;
e. And that any such fear on Ms. Mwara’s part was reasonable.
I said earlier that it is not my job to determine every nook and cranny of what happened, but rather to determine whether or not the Crown has proved its case beyond a reasonable doubt on all of the evidence. By way of example here, I cannot say one way or the other if Mr. Ceesay was violent towards Ms. Mwara in the past. I do not have a reason on this record to accept her allegation or to reject his denial (or vice versa). This is a significant element towards the proof of reasonable fear. Likewise I cannot say one way or the other if she had or had not broken up with him in October. If she had, that would be a piece of evidence on the Crown’s side of the ledger. I can accept that Mr. Ceesay was told on 28 November that Ms. Mwara did not want to see him, but mere limited persistence in trying to verify that does not necessarily make out a criminal offence. Section 264 cannot be interpreted to convert every heartbroken or confused forsaken lover, who doesn’t take the first “no” at face value (in this case a second-hand “no” via a resident of Ms. Mwara’s former home) into being the bearer of a serious criminal record; it is of narrower scope than that. (I accept, of course, that depending on the facts “repeated” communication could be as few as two instances). In this case, the number of instances of proved communication is not great.
Unless the evidence of prior assaultive behaviour by Mr. Ceesay is made out, there is nothing in the proved limited communication that would make Ms. Mwara’s professed fear reasonable. If I were confident that those previous assaultive incidents were made out, it would be a different matter, but I cannot in good conscience reject Mr. Ceesay’s denials.[^1] This is a classic “he said/she said” with virtually no independent evidence to resolve the conflicts. In the context of Mr. Ceesay’s recent release, his need for the debit card, etc. as mentioned earlier, there is nothing patently unreasonable about how he conducted himself in the week after his release from custody. He made inquiries at different places and by different means over a reasonably short period of time and offered various non-contact alternatives for recovery of his debit card that would honour Ms. Mwara’s desire to be done with him, however recently that desire had come to his attention. Although it was not argued before me, I would think that whatever other weaknesses there are in the Crown’s case, there is also a live question of whether Mr. Ceesay is protected by the requirement that his communications be “without lawful authority”. I would suspect that his desire to retrieve his property (the debit card), which he needed urgently, from a person who, to his knowledge is overholding it would constitute “lawful authority” for him to communicate with her. (Ms. Mwara said at trial that she had no idea where it had gone but she was the last known holder and there is no suggestion that she had told Mr. Ceesay that she no longer knew where it was.)
In applying the W.D. decision of the Supreme Court of Canada, I must consider whether or not I believe a defendant’s evidence, whether or not it creates reasonable doubt and also whether or not, quite apart from those two questions, the Crown has proved its case beyond a reasonable doubt. There is no magic in whether one answers all of the W.D. questions or only some of them, depending on the case. Ultimately the only two people who know the full truth of the ins and outs of their relationship are Ms. Mwara and Mr. Ceesay. I shall therefore answer only the last of the W.D. questions by saying that given the frailties on the issue of Mr. Ceesay’s knowledge that Ms. Mwara was harassed and on the issue of the reasonableness of Ms. Mwara’s fear, the Crown has failed to prove the charge beyond a reasonable doubt. As I said earlier, there is probably also a failure on the issue of lawful authority, but by this point that conclusion is surplusage.
In the result, the Crown has not proved the charge beyond a reasonable doubt and I find Mr. Ceesay not guilty.
Delivered orally: 15 May, 2025
Footnotes
[^1]: Clearly, one potential basis for rejecting a defendant’s evidence is the path set out by Doherty J.A. in R. v. J.J.R.D., 2006 ONCA 40088, as follows: “An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.” To put it another way, our criminal law does not have a corroboration requirement for complainants’ evidence. However, there will be many, many cases in which a trier of fact will not be comfortable, after a reasoned analysis of all of the evidence, in following the J.J.R.D. path to conviction. Having considered all of the evidence before me, this is one such case. [^2]: R. v. W.D., [1991] 1 SCR 742