R. v. Colosie, 2016 ONSC 1708
CITATION: R. v. Colosie, 2016 ONSC 1708
COURT FILE NO.: CR-15-70000025-00AP
DATE: 20160309
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
UPINDER COLOSIE
Appellant
COUNSEL:
Luke Schwalm, for the Crown
Matthew Gourlay and Nicola Langille, for The appellant
HEARD: November 18, 2015
TROTTER J.:
INTRODUCTION
[1] The appellant was a part-time photographer, the complainant an amateur model. They met on a website called “ModelMayhem.com”, a networking site for photographers, models and others. The two chatted online and eventually met in person. The complainant testified that the appellant drove her to a remote location and sexually assaulted her, and then did so again shortly after. The appellant denied any sexual contact.
[2] The appellant was charged with two counts of sexual assault and one count of breaching an undertaking. After a trial before Justice F. Clements of the Ontario Court of Justice, he was found guilty on all counts and sentenced to a 9-month conditional sentence and 9 months of probation. By virtue of s. 490.013(2.1) of the Criminal Code, the appellant was ordered to comply with the Sex Offender Information Registration Act, S.C. 2004, c.10 (“SOIRA”) for life.
[3] The appellant appeals his convictions, the principal ground being that the trial judge erred in his use of text message communications. Also, for the first time on appeal, he challenges the constitutional validity of s. 490.013(2.1), asserting that it violates s. 7 of the Charter.
[4] For the reasons that follow, the appeal against conviction is dismissed and the appeal against sentence is quashed for lack of jurisdiction.
FACTUAL BACKGROUND
[5] The complainant and the appellant both testified and gave vastly different accounts of what happened on September 10, 2011. A brief summary of this conflicting evidence is all that is needed to decide the issues on appeal.
(a) The Events of September 10, 2011
[6] The appellant contacted the complainant on August 12, 2011 by sending her a message on ModelMayhem.com (“ModelMayhem”). They eventually spoke on the phone and shared MSN messages and agreed to meet. The complainant believed they were getting together to discuss a future photo shoot. She wanted to meet at the Scarborough Town Centre, which she considered to be an appropriate “neutral” location for a first meeting.
[7] The appellant picked the complainant up as planned. Instead of going to the mall, the appellant went to a liquor store and offered to buy the complainant wine. She thought that this was a gift. According to the complainant, as they were driving towards the mall, the appellant said he wanted to show her where he normally photographs models. He drove north for about half an hour and pulled into a park with a small parking lot. The complainant recognized this location from the appellant’s “ModelMayhem” postings.
[8] The complainant testified that, after they parked, the appellant insisted that they drink the wine. He was concerned that the “cops” might come by and see it. The appellant filled her plastic cup numerous times, encouraging her to drink. The complainant became sick and vomited outside of the car. The appellant told her that she needed to eat, so they drove off in search of food. The appellant pulled the car over and she vomited again. The appellant then said, “Here, let me help you.” He reclined the complainant’s seat and then put his hands under her top and bra and squeezed both of her breasts. The complainant said, “What are you doing?” She told the appellant that she wanted to go home. She did not consent to being touched.
[9] The appellant began to drive, but had to pull over because the complaint was sick again. Once again, the appellant put the complainant’s seat back. This time he unfastened her bra, touched her breasts and touched her vagina underneath her shorts and underwear. The appellant tried to kiss the complainant, but she resisted. The complainant said that she wanted to go home. The appellant dropped her off at a gas station and she took a bus home.
[10] The appellant’s version is radically different. He agreed with a good deal of the complainant’s description of their initial correspondence. However, he said that he provided the complainant with his phone number; the complainant said he did not. As discussed below, the trial judge rejected the appellant’s evidence on this issue. Consistent with not having the appellant’s phone number, the complainant messaged the appellant to call her on September 10, 2011. He complied, and they agreed to meet each other. The appellant testified that he thought she was going to “heal” his back. They had previously discussed the complainant’s interest in healing powers. He said that he would buy the complainant’s groceries in return for the healing.
[11] The appellant testified that, when he picked the complainant up, she asked him to buy her wine instead of groceries. She explained that the healing process is facilitated by the consumption of alcohol because it allows heat to escape from her body. The complainant consumed alcohol in the car while they were driving. The appellant did not know where the healing would take place and essentially drove around aimlessly, directed by the complainant. They ended up in the north end of the city, where the complainant repeatedly vomited. The appellant’s remedy for the complainant’s vomiting was to have her eat something. She refused and asked to go to a gas station so that she could clean herself up. The complainant emerged from the gas station with a bottle of water. She asked the appellant to drive her home. He refused. The appellant said that this made the complainant “very angry.” It was the appellant’s suggestion at trial that the complainant fabricated the allegations against him because he refused to drive her home that day.
(b) The Electronic Correspondence
[12] The main issue on the conviction appeal concerns the trial judge’s admission and use of on-line communications between the appellant and the complainant. There were two sets of messages. The trial judge conducted a voir dire to determine the admissibility of these exchanges. The only witness to testify on the voir dire was the complainant.
[13] The first set of messages was sent on “ModelMayhem.” The appellant consented to the admission of these messages, perhaps because there did not appear to be anything particularly incriminating about them. However, this concession may have been premature or shortsighted because these messages ended up undermining aspects of the appellant’s testimony.[^1]
[14] The appellant took issue with a group of MSN messages. The complainant testified that, after their exchanges on “ModelMayhem”, she and the appellant spoke on the phone and then started communicating by MSN. While acknowledging that they chatted by this medium before September 10, 2011, the complainant only saved MSN messages after this date.
[15] In the MSN messages, the complainant communicated with someone using the name “StylesSecretz.” She believed this was the person she met on September 10, 2013. She explained that, when she gave the person her email address, he added her to MSN as a “contact.” It was an “instant add” and showed up as such on her MSN page. This fact, along with the content of the exchanges, led the complainant to believe that “StylesSecretz” and the appellant were one and the same.
[16] In examination-in-chief, the complainant denied editing any of the messages. She testified that it is not possible to edit saved MSN conversations. In cross-examination, the complainant confirmed that she did not edit any of the messages. When asked whether it is “easy to cut and paste” these messages, she replied, “I don’t know if it is.” It was never suggested to the complainant at any point during the trial that she fabricated the entire MSN conversation or altered an existing one.
[17] At the conclusion of the voir dire evidence, defence counsel objected to the admissibility of the MSN messages because: (1) the complainant had no present recollection of the email address in the correspondence; and (2) “there’s no way of knowing who sent these messages, or whether or not they've been edited, etc.” The trial judge admitted the evidence on the following basis, holding in part:
She recognizes having the conversation with a person by the name of StylesSecretz. But beyond that I don’t know what weight one might attach to them at the end of the day. I’m prepared to admit them for that limited purpose at this stage, subject to argument at the end of the trial, as to what weight if any I’m going to give these, because the Crown still hasn’t satisfied me beyond reasonable doubt that when she testifies about these that StylesSecretz is in fact the accused.
[18] When he testified on the trial proper, the appellant acknowledged that he was a party to “ModelMayhem” messages. He also acknowledged that he communicated with the complainant by phone and then by MSN. The appellant testified that he gave the complainant his phone number. The complainant said he did not, and that he always called her from a “private number.” The trial judge disbelieved the appellant on this point, based on the “ModelMayhem” messages.
[19] The appellant denied that he was “StylesSecretz.” In his examination-in-chief, he said that “Style Secrets” used to be “one of my websites.” This could be a transcription error because, in cross-examination he said it was “StySecretz” that was his website name. He said his username on MSN was Fashionicon@msn.ca. The appellant was asked about a number of the MSN messages. He acknowledged several instances where the messages touched on issues he had discussed with the complainant in person (i.e., about giving her a Photoshop book and in relation to the complainant’s fiancé), but he denied being part of the MSN conversation about them. The implication was that the complainant fabricated these communications about seemingly innocuous matters or that someone else was pretending to be the appellant, apparently having knowledge of his recent lived experience with the complainant.
[20] In his Reasons for Judgment, the trial judge addressed the authenticity and permissible use of the MSN messages:
Given the similarity between the username StylesSecretz and StySecretz, the consistency between the admitted conversations Colosie had with [the complainant] on September 10th and the MSN exchanges the following day and thereafter, it is difficult to accept Colosie’s evidence that he was not the author of the messages attributed to StylesSecretz in Exhibit 1. Moreover, the very person she arranged to meet on October 3rd, 2014 as a result of conversations on MSN following the alleged offence date of September the 10th, 2011 was the same person she met on that day, namely Colosie. I conclude that Colosie was, in fact, the author of the messages attributed to StylesSecretz in Exhibit 1. I reject his testimony that he did not write those messages. [emphasis added]
[21] In the MSN messages, the appellant said things such as “do u forgive me?”, “are u still angry with me?” and “can I do anything to mend it?” The trial judge concluded that, “Colosie’s text messages are evidence of consciousness of guilt.”
[22] In finding the appellant guilty, in addition to relying on the MSN messages, the trial judge also relied on the non-contested “ModelMahyem” messages. In particular, the trial judge disbelieved the appellant’s evidence that he gave his phone number to the complainant because his assertion was not supported by these messages.
THE CONVICTION APPEAL
(a) The MSN Messages
[23] The appellant argues that the trial judge erred in his use of the MSN messages. He contends that the trial judge’s conclusion that the appellant was the person behind “StylesSecretz” was flawed because this conclusion turned on and bore upon the credibility of the complainant and the appellant. Mr. Gourlay and Ms. Langille for the appellant submit: “Any finding on authorship would reflect poorly on either the complainant or the Appellant: the MSN messages presented a zero-sum credibility game.” I disagree.
[24] The appellant implicitly suggests that the trial judge was required to engage in a two-step process, whereby he first needed to determine the admissibility of the messages separate and apart from the rest of the evidence adduced at trial. The trial judge was permitted to consider the authenticity of the email messages in the context of all of the evidence, including the content of the messages. See R. v. Moss, 2011 ONSC 5143, [2011] O.J. No. 4470 (S.C.J.), at paras. 60-65 and R. v. Soh, 2014 NBQB 20, at paras. 33-40.
[25] Justice David Paciocco, in “Proof and Progress: Coping With the Law of Evidence in a Technological Age” (2014), 11 C.J.L.T. 181, addressed the issue of proving the authenticity of electronic correspondence. He suggests that, as with paper correspondence, the authenticity of electronic correspondence may be established circumstantially (pp. 197-198):
At common law, correspondence can be authenticated as having been sent by an individual by showing that it is a reply to a letter sent to that individual. The same logically holds true for emails and text messages. If evidence shows someone sent a text or email to an individual they believe to be linked to that address and there is a response from the person purportedly written to, that is some evidence of authenticity.
Similarly, text messages can be linked to particular phones by examining the recorded number of the sender and receiving evidence linking that number to the person in question. [emphasis added]
Just as a reply to a message from the complainant is some evidence of authenticity, the subject matter of the reply can be relevant and probative of the identity of the sender. Consequently, the trial judge did not err in considering all of the evidence, including the appellant’s, when determining whether it had been established that he was the person behind the “StylesSecretz” address.
[26] There were numerous reasons why the trial rejected the appellant’s evidence. The MSN messages formed just one part of his analysis. The trial judge placed a great deal of emphasis on the “ModelMayhem” messages admitted on consent. Further, the trial judge found some of the appellant’s testimony unbelievable – not because of its relationship to MSN correspondence, but due to its inherent improbability and lack of common sense. These themes are brought together in the following passage, which addresses a central feature of the appellant’s evidence – that he met the complainant on September 10, 2011 for the purpose of being healed:
The focus of the text messages in Exhibit 2 [the undisputed “ModelMayhem” messages] was about a potential photo shoot and a meeting to discuss that possibility. The absence of any reference to healing and Colosie’s back pain is suspicious and undermines my confidence in his testimony about the real purpose of their meeting on September 10th. Moreover, Colosie’s evidence that he drove aimlessly without clear or specific direction or instructions from [the complainant] about the location where the healing was going to be performed did not accord with common sense. Given that Colosie drove from Markham or Scarborough into downtown Toronto for a healing session which he thought initially was going to happen at [the complainant’s] house or home, it made no sense that he would simply drive north out of the city without any idea of his destination and that he would not insist [the complainant] give him a fixed location to attend whether it was to happen in his car or otherwise. While alcohol might be consumed during the healing performance, the idea that it was somehow necessary to the processes [the complainant] allegedly insisted strained credulity. For those reasons I reject Colosie’s evidence that healing was the reason they met on September 10th, and I accept [the complainant’s] testimony that they met for the purpose of discussing a photo shoot and she never offered to heal his back.
Support for her testimony is found in Exhibit 2…. [emphasis added]
Later in his reasons, he described this aspect of the appellant’s testimony as “preposterous.” He also characterized the appellant’s evidence concerning the complainant’s state of sobriety when he dropped her off at the gas station to be “not compelling.” The trial judge said: “This evidence about her effectively sobering up was disingenuous and I reject it.”
[27] These conclusions were reached without the use of the MSN correspondence. Having made these findings, the trial judge was entitled to use them in his determination about the authorship of the MSN messages. Considered along with the content of the MSN messages, the appellant’s admission to chatting about things on September 10, 2011 reflected in the MSN messages and his absurd “StylesSecretz” vs. “StySecretz” evidence, the trial judge was amply justified in rejecting the appellant’s testimony that he did not write the MSN messages.
[28] In the alternative, the appellant argues that, having admitted the MSN messages, the trial judge failed to consider their exculpatory value: R. v. Rojas (2008), 2008 SCC 56, 236 C.C.C. (3d) 153 (S.C.C.). I am not persuaded that the trial judge so erred. The two examples relied upon by the appellant are minor, ambiguous and of no consequence.
(b) Uneven Scrutiny
[29] The appellant contends that the trial judge applied a higher standard of scrutiny to the defence evidence than he did to the Crown’s evidence. This argument was not pressed during oral submissions. I can find no basis on which to intervene. See R. v. Gravesande (2015), 2015 ONCA 774, 128 O.R. (3d) 111 (C.A.), at p. 115 and R. v. Aird, 2013 ONCA 447, at para. 39.
THE SENTENCE APPEAL
[30] The appellant does not dispute the fitness of the sentence imposed by the trial judge. However, he contends that s. 490.013(2.1) of the Criminal Code is overbroad and violates s. 7 of the Charter.
[31] This provision provides that, when an individual is convicted of more than one designated offence (such as sexual assault), the SOIRA order must be for life. The appellant contends that, generally speaking, this consequence of multiple offending is not objectionable. For example, if someone is found guilty of sexually assaulting different victims on the same day, or assaulting the same victim on separate occasions, the section would not be considered overbroad. However, in this case, the trial judge found that the two sexual assaults flowed from a “single transaction.” By providing for a lifetime SOIRA order in these circumstances, the appellant contends that the section overshoots its mark, and in a manner that violates s. 7. The appellant seeks a declaration of invalidity under s. 52 of the Constitution Act, 1982, which would have the effect of subjecting the appellant to a 20-year SOIRA order.
[32] When the appeal was heard, the Crown did not object to the issue being raised for the first time on appeal: see R. v. Sweeney (2000), 2000 16878 (ON CA), 148 C.C.C. (3d) 247 (Ont. C.A.), at paras. 34-40 and R. v. Roach, 2009 ONCA 156, at para. 7. Consequently, I heard argument on the merits of this Charter claim. However, while I had the case under reserve, I became concerned about whether there is a right of appeal from an order made under s. 490.012(1). I invited further written submissions from counsel.
[33] Section 490.014 provides for an appeal from orders made under s. 490.012(2). This stands to reason because orders made under that section are not automatic or mandatory; they hinge on the prosecutor being able to establish beyond a reasonable doubt that certain “designated offences” in s. 490.011 were committed with the intent of committing one of a different group of “designated offences.”[^2] There is no similar appeal provision that relates to orders made under s. 490.012(1). That is because sentencing judges no longer have any discretion to refuse to make a SOIRA order in these circumstances.[^3]
[34] As Mr. Gourlay and Ms. Langille concede in their supplemental written submissions, the “weight of authority” holds that there is no right of appeal from orders made under s. 490.012(1). To date, 5 provincial appellate courts have concluded that there is no right of appeal from orders under s. 490.012(1): R. v. Chisholm (2012), 2012 NBCA 79, 292 C.C.C. (3d) 132 (N.B.C.A.); R. v. W. (J.J.) (2012), 2012 NSCA 96, 292 C.C.C. (3d) 292 (N.S.C.A.), p. 315; R. v. Whiting (2013), 2013 SKCA 127, 304 C.C.C. (3d) 342 (Sask. C.A.), at p. 355; R. v. Bouchard, [2013] J.Q. No. 1452; and R. v. L.V.R., 2016 BCCA 86, at para. 43. These are all decisions from Part XXI appeals. However, these provisions are made applicable to summary conviction appeals (Part XXVII) by s. 822. See R. v. German Alvarenga-Alas, 2014 ONSC 4725, at paras. 71-89, a decision considering the availability of prerogative relief where the sentencing judge failed to correct an error relating to proper duration of a SOIRA order.
[35] As Chief Justice Drapeau said in Chisholm, at p. 137: “It is settled law that there is no inherent right of appeal. Appeals are creatures of statute and there must be a statutory basis for appellant intervention.” The Court also observed (at pp. 141-142) that numerous courts have found that a SOIRA order is not (nor part of) a “sentence” for the purposes of Part XXI (Appeals- Indictable Offences) in the Criminal Code. Section 673 of the Code identifies a number of orders that are included in the definition of a “sentence.” An order made under s. 490.012(1) is not one of them. Parliament decided to provide for a right of appeal in relation to discretionary SOIRA orders. Not surprisingly, it provided no right of appeal from orders that are mandatory in all facets – in terms of when they must be made (s. 490.012(1)) and their duration (s. 490.013).
[36] There are a few authorities that point in the opposite direction. For example, in R. v. B.L., 2015 ONSC 4509, D. Fitzpatrick J., sitting as a summary conviction appeal court, considered the constitutionality of s. 490.013(2.1). The SOIRA order in that case was made under s. 490.012(1). Fitzpatrick J. purported to hear the appeal pursuant to s. 490.014.
[37] In R. v. Abel, 2013 NLCA 6, the Court corrected an error concerning the duration of a SOIRA order, without any consideration of the jurisdictional issue. In R. v. Haynes, 2013 NLCA 18, the same Court, on the urging of both parties, held that there was jurisdiction under s. 830(1)(a) of the Criminal Code to hear the appeal from a SOIRA order. Finally, in R. v. A.C., 2012 ONCA 608, the Court of Appeal corrected a similar error. With respect, the jurisdictional issue was not addressed. It would appear that it was not argued.
[38] I return to appellate counsel’s fair acknowledgment that the weight of authority holds that there is no ability to appeal a SOIRA order under s. 490.012(1). Counsel submits that this is a result of a “legislative glitch” and “flawed” thinking and points to concerns expressed by Drapeau C.J.N.B. in Chisholm, at p. 145, that it was with “great reluctance” that the Court concluded that SOIRA orders are not appealable. However, the Chief Justice went on to say, at pp. 145-146:
That state of affairs points to the advisability of an amendment to s. 490.014 which would reinstate the right of appeal it previously recognized in relation to those orders. Of course, we are not in the business of amending statutes, our sworn duty being to do right according to applicable law.
[39] Whether regrettable, inconvenient or otherwise, I conclude that I have no statutory jurisdiction to entertain an appeal from the SOIRA order made under s. 490.012(1) for the duration prescribed in s. 490.013(2.1).
[40] Does the constitutional nature of the appellant’s purported appeal against the SOIRA order make a difference? I do not think it does. Counsel for the appellant invited me to exercise the inherent jurisdiction of the Superior Court to entertain a fresh application for a declaration pursuant to s. 52 of the Constitution Act, 1982. In doing so, they urge the “dual proceedings” approach discussed in R. v. Laba (1994), 1994 41 (SCC), 94 C.C.C. (3d) 385 (S.C.C.). As the counsel for the appellant put it in their supplemental written submissions: “The ‘dual proceedings’ approach was developed in order to deal with cases in which a constitutional issue arises in the course of criminal litigation- but the criminal case concludes in a way that leaves no statutory right of appeal to the party against whom the constitutional issue was decided.”
[41] In this case, the constitutional issue did not “arise” in the summary conviction appeal court. The issue arose when the appellant was being sentenced. It could have been raised at that point in time. It was not. Having not raised it in the appropriate forum – before the trial judge – the appellant now asks me to piece together some sort of hybrid proceeding (statutory summary conviction appeal powers + a free-standing application to invoke this Court’s inherent jurisdiction) to create a platform for this issue to be litigated. In the absence of direct authority to do so, I am not persuaded that this is the appropriate manner of proceeding: see R. v. J.C. (2006), 2006 345 (ON SC), 206 C.C.C. (3d) 276 (Ont. S.C.J.).
CONCLUSION
[42] Accordingly, the appeal from conviction is dismissed and the appeal from the SOIRA order is quashed for want of jurisdiction.
[43] I wish to thank counsel for their very helpful submissions.
TROTTER J.
RELEASED:
CITATION: R. v. Colosie, 2016 ONSC 1708
COURT FILE NO.: CR-15-70000025-00AP
DATE: 20160309
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
UPINDER COLOSIE
Appellant
REASONS FOR JUDGMENT
TROTTER J.
RELEASED: March 9, 2016
[^1]: I note that neither Mr. Gourlay nor Ms. Langille represented the appellant at trial.
[^2]: This is really just an overly complicated way of distinguishing between primary and secondary designated offences. See, for example, the DNA databank provisions in which this distinction is clearly made in s. 487.04.
[^3]: As originally enacted, s. 490.012(4) furnished sentencing judges with a discretion not to make an order. This was removed by the Protecting Victims From Sex Offenders Act, S.C. 2010, c. 17, s. 5.