CITATION: R. v. Ricciardi, 2017 ONSC 5562
COURT FILE NO.: CR-15-00008724
DATE: 20170920
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANTONIO RICCIARDI
Defendant
Joanne McIntyre and Michelle Rumble, for the Crown
Jessica Sickinger and Jeffrey Goldglass, for the Defendant
HEARD: March 20, 21, 22, 23, 24, May 11, 12, 15, 16, 18, 19, June 12, 13, 15, 16, 20, 21, 22 and 23, 2017
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published
REASONS FOR JUDGMENT
DI LUCA J.:
[1] Mr. Ricciardi was tried on an indictment alleging 22 offences. Pre-trial motions were heard in February, March and May of 2017. The trial proper commenced in March and continued for a number of days, ending on June 23, 2017. Pre-trial motions included an application for leave to cross-examine the search warrant affiant, a Garofoli application, a manner of search application, a challenge to the warrantless seizure of a sweatshirt, a section 24(2) application and related Goldhart application addressing evidence that was found to be unlawfully seized, and a voluntariness voir dire relating to a statement made following arrest. A Leaney application, dealing with the permissible scope of proposed identification evidence by a police officer, was also addressed during the trial. Lastly, a “count on count” similar act evidence application was argued and will be addressed in the course of these Reasons. These Reasons address my findings in relation to the offences charged.
Overview of the Case
[2] The central allegations in this case involve three apparently random attacks on women. Mrs. S.N. was attacked by a knife-wielding assailant while trying to get into her car at a mall. Ms. C.V. was attacked with a knock-out punch to the face by a knife-wielding assailant while working at a bridal boutique. Mrs. G.E., a 70 year old widow, was attacked in her own apartment as she returned from a day at the mall. Shortly after two of the attacks, the attacker returned to the residence of his respective victims. While all three attacks were either interrupted or thwarted, there can be no doubt that the attacks were terrifying. To be blunt, the attacks readily conjure “worst nightmare” scenarios. Thankfully the victims suffered no significant physical injuries, though I am sure each suffered and continues to suffer emotionally and psychologically.
[3] Against the backdrop of these attacks, there are also allegations of a lengthy and detailed scheme to target young women online using false job ads posted on Craigslist, offering employment in the restaurant and entertainment industry. The ads invited young women to apply for jobs and provide photographs of themselves in support of their applications. In several instances job interviews were set up at certain locations, though the purported employer never showed up. None of the women involved in this scheme ever met the person behind the ads. The Crown alleges that the purpose of the scheme was to target young women for kidnapping and/or sexual assault.
The Charges
[4] For ease of reference, the charges can be grouped as follows:
C[...] Street North – July 14, 2014
Count 1 – Break and Enter of a Dwelling House
The Attack on Mrs. S.N.
Count 2 – Attempt Kidnapping – July 19, 2014
Count 3 – Robbery – July 19, 2014
Count 4 – Attempt Sexual Assault with a Weapon – July 19, 2014
Count 5 – Carry Concealed Weapon – July 23, 2014
Count 6 – Possession of Property Obtained by Crime Under $5,000 – July 23, 2014
The Attack on Ms. C.V. – January 26, 2015
Count 7 – Assault with a Weapon
Count 8 – Having Face Masked with Intent to Commit Assault
Count 9 – Unlawful Confinement
Count 10 – Attempt Sexual Assault with a Weapon
The Attack on Mrs. G.E. – February 11, 2015
Count 11 – Break and Enter a Dwelling House
Count 12 – Assault
Count 13 – Having Face Masked with Intent to Commit Assault
Count 14 – Unlawful Confinement
Count 15 – Attempt Sexual Assault
Count 16 – Criminal Harassment
The Arrest – February 12, 2015
Count 17 – Carry Concealed Weapon
Count 18 – Obstruct Police
Count 19 – Fail to Comply Recognizance – No weapons condition
Count 20 – Fail to Comply Recognizance – Residence condition
The Craigslist Offences – December 30, 2014 – February 12, 2015
Count 21 – Attempt Sexual Assault
Count 22 – Attempt kidnapping
Overarching Legal Principles
[5] Mr. Ricciardi is presumed innocent of each and every count in the indictment. It is the Crown’s onus to prove the charges beyond a reasonable doubt. Mr. Ricciardi is not required to prove anything.
[6] As is his right, Mr. Ricciardi did not testify though he did call a police witness on an issue relating to the Ms. C.V. incident. The Crown also tendered a videotaped statement by Mr. Ricciardi that contains some admissions and some denials by him. If I accept the evidence that favours Mr. Ricciardi, I must find him not guilty on the counts relating to that evidence. However, I do not need to accept the evidence that favours Mr. Ricciardi in order to find him not guilty of the counts relating to that evidence. If the evidence that favours Mr. Ricciardi leaves me with reasonable doubt on any count, Mr. Ricciardi is entitled to an acquittal on that count. Even if none of the evidence that favours Mr. Ricciardi leaves me with reasonable doubt, I must nonetheless review the balance of the evidence to assess whether, on the basis of the evidence I accept, the Crown has proven the case beyond a reasonable doubt.
[7] The Supreme Court has said that a reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
[8] While likely or even probable guilt is not enough, proof to a level of absolute certainty is also not required. While there is no mathematical percentage used to describe proof beyond a reasonable doubt, it is understood that it falls much closer to absolute certainty than to proof on a balance of probabilities.
[9] In short, if, based upon the evidence before the court, I am sure that Mr. Ricciardi committed one or more offences, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. If I am not sure, I must acquit.
Issues to be Determined
[10] During submissions, the defence conceded that the Crown had met its burden on Count 6 and Count 17. I agree with this concession. On the evidence before me, Mrs. S.N.’s purse was found in Mr. Ricciardi’s bedroom four days after it was taken from Mrs. S.N. An easy and singular inference as to knowledge, at the very least, arises on the basis of this recent possession. As well, when Mr. Ricciardi was arrested on February 12, 2015, he had a large knife strapped to his torso. This readily meets the legal test for carrying a concealed weapon. Mr. Ricciardi is therefore found guilty of Counts 6 and 17.
[11] In relation to Count 19, the defence concedes that the offence is established on the basis of Mr. Ricciardi’s possession of a knife on arrest, but does not concede that he possessed a weapon on any other occasion while bound by the terms of the recognizance. On the basis of the defence concession, Mr. Ricciardi is found guilty of Count 19. There is no need for him to have committed the offence on more than one occasion, though it will be aggravating if that is the case.
[12] The defence also conceded that in relation to Count 20, there were time periods wherein Mr. Ricciardi was not residing where required by the terms of his recognizance. On the basis of this admission and the agreed facts contained in Exhibit 51, I find Mr. Ricciardi guilty of Count 20.
[13] The two main issues to be determined in relation to the balance of the counts are identity and intent. There are also issues relating to whether certain conduct, if proven, falls within the scope of the relevant Criminal Code provisions. I will address each in relation to remaining counts as grouped above.
C[...] Street North – Count 1
[14] The evidence in relation to this count was tendered primarily by way of an agreed statement of fact filed as Exhibit 2. According to the agreed facts, C[...] Street North is a residence owned by Louisa and Alfonso Catenaro. The residence is located approximately a 10 minute drive north of Mr. Ricciardi’s residence, Baif Boulevard.
[15] On July 10, 2014 at approximately noon, Mr. and Mrs. Catenaro were in their back sunroom having lunch. There is no fence or gate that blocks access from the front yard to the backyard of the residence. At a certain point during lunch, the Catenaros noticed a man come from the south side of their house and approach the screen door of the sunroom. Mr. Catenaro went outside and spoke with the man who asked, “if this was the place where they played cards”. Mr. Catenaro indicated that the address of the residence was C[...] Street North and that the address of the arena was 43 Church Street South. The Catenaros often encountered people knocking on their door looking for the arena locate at 43 Church Street South.
[16] Mrs. Catenaro described the man as 60 or 70 years old, tall, skinny with lots of white hair that was short in the back. She noted that he walked “a little hunched over”, had olive coloured skin, with a long face and no facial hair. Mrs. Catenaro was unable to pick Mr. Ricciardi out of a line-up. She advised officers that the photos in the line-up did not fit the description of the person she had seen. She believed the person she had seen resembled a neighbour who lived two doors down.
[17] Mr. Catenaro described the man as in his early to late 60’s, skinny, having white and grey short hair, with more hair on the sides than on top. He described the man’s skin colour as “middle”, “not really white and not really black”. He also noted that the man spoke poor English. Mr. Catenaro was also shown a photo line-up and he too was unable to pick out Mr. Ricciardi.
[18] On July 15, 2014, the Catenaros were gardening in their backyard. The front and side doors of the residence were locked. The backdoor and the sliding patio door to the sunroom were unlocked and/or open. At a certain point, Mrs. Catenaro entered the bedroom and noticed that her jewellery was on the floor and that her jewellery box was open and also on the floor. Certain items of jewellery were missing. The following day, Mrs. Catenaro noticed that her Amex Costco card was missing from her wallet. The wallet had been inside her purse on a chair in the kitchen. Nothing else was missing from her wallet. The Amex Costco card was the only credit card in her wallet bearing her photograph.
[19] Mr. Thuan Le is the owner of a pawn shop located at 1273 Bloor Street West. Mr. Le knew Mr. Ricciardi from his dealings at the pawn shop, which included approximately 18 transactions between January 17, 2007 and July 17, 2014. Those transactions were recorded in the “Business Watch International” database.
[20] On July 17, 2014, Mr. Ricciardi attended at the pawn shop and pawned a gold chain and locket for $60. On August 5, 2014, the gold chain and locket were retrieved from the pawn shop by police. The items were shown to Mrs. Catenaro who identified them as hers, though she noted that the photograph that was kept inside the locket had been removed.
[21] On July 24, 2014, police searched Mr. Ricciardi’s bedroom and located a bag containing several items of jewellery belonging to Mrs. Catenaro, as well as the Costco Amex card bearing her name and photograph.
[22] Mr. Ricciardi is facing one count of break and enter in relation to this incident. There is no issue that someone entered the Catenaro residence and removed the items of jewellery as well as the credit card. There is also no issue that some of the stolen items were found in Mr. Ricciardi’s bedroom nine days after they were taken. As well, there is no issue that Mr. Ricciardi pawned two of the stolen items two days after they were taken.
[23] The issue is whether Mr. Ricciardi is the person who committed the break and enter.
[24] The Catenaros were unable to identify Mr. Ricciardi as the person who attended their home on July 10, 2014. They provided descriptions that in some regards match Mr. Ricciardi and some regards do not. Their descriptions of the person who attended at the home on July 10, 2014 do not assist me in determining whether Mr. Ricciardi was the man on July 10, 2014. I am unable to conclude that it was Mr. Ricciardi who attended on July 10, 2014.
[25] Even if I could make that determination, I would then also need to find that the person who attended on July 10, 2014 was also the person who returned on July 15, 2014 to commit the break and enter. Apart from suspicion, I have essentially no basis upon which I can connect the attendance on July 10, 2014 to the break and enter on July 15, 2014. At best, it is possible that the person who attended on July 10, 2014 was “casing” the house or attempting to break in, not expecting to find people at home.
[26] This finding does not end matters. The common law doctrine of recent possession permits an inference of guilt in circumstances where an accused person is found in the unexplained possession of recently stolen property: see R. v. Kowlyk, 1988 50 (SCC), [1988] S.C.J. No. 66, at para. 12. The inference is permissive, not mandatory. It is not a presumption. The inference of guilt may relate to knowledge that the items are stolen, but it may also relate to participation in a related offence such as theft, break and enter, and even murder: see R. v. Morgan, 2013 ONSC 1522 and R. v. Hubler, 2013 ABCA 31.
[27] The application of the doctrine is not intended to reverse the onus onto the accused. While the doctrine of recent possession speaks of “unexplained possession”, the lack of an explanation by an accused is not evidence against the accused. The accused’s contemporaneous silence and/or failure to testify does not give rise to an adverse inference. The term “unexplained possession” has been interpreted as simply an acknowledgment that the inference from recent possession will not arise in cases where an accused person proffers an explanation for the possession that might reasonably be true: see R. v. Cumming, (2001), 2001 24118 (ON CA), 158 C.C.C. (3d) 433 (Ont. C.A.), at para. 34.
[28] In view of these principles, the issue to be determined is whether the facts, taken together support one, and only one reasonable inference; namely, that Mr. Ricciardi was the person who committed the break and enter. If these facts also reasonably support the inference that Mr. Ricciardi was simply in possession of the stolen items and not involved in the break and enter, I must acquit him of this offence.
[29] In my view, the unexplained and recent possession of the stolen items in the days after the break and enter provides a sufficient basis upon which I can infer that Mr. Ricciardi is the person who committed the break and enter into the Catenaro residence on July 15, 2014. I rely on the fact that two days after the break and enter Mr. Ricciardi pawned some items of jewellery taken from Mrs. Catenaro at a pawn shop located in Toronto, some distance from the scene of the break in and some distance from his residence. I also rely on the fact that additional jewellery taken from Mrs. Catenaro was found in Mr. Ricciardi’s bedroom at his residence and most importantly, a credit card that bears a photograph of Mrs. Catenaro was also found in Mr. Ricciardi’s bedroom. Its presence in Mr. Ricciardi’s bedroom is telling. When I consider the fact that cash, other credit cards and other items in the wallet were left untouched, I find that the credit card with the photograph was specifically selected from Mrs. Catenaro’s wallet and stolen.
[30] While stolen property that is easily convertible into cash might quickly change hands between a thief and mere possessor, an item such as a credit card with the photograph of the owner on the card is not such an item, especially when it is selected out of a wallet containing other valuables. I am left with no doubt that Mr. Ricciardi’s possession of the credit card, along with the other items of jewellery, in a time frame very proximate to the break and enter, leads to only one reasonable inference beyond a reasonable doubt, namely that Mr. Ricciardi was the person who committed the break and enter of the Catenaro residence on July 15, 2014.
[31] I therefore find him guilty of Break and Enter (Count 1).
The Attack on Mrs. S.N. – Summary of Facts
[32] On July 19, 2014, Mrs. S.N. went to the Hillcrest Mall shortly after 3:45 p.m. to do some banking. She drove to the mall using her son’s car. She arrived at the bank at 4:00 p.m. and discovered that the bank was closed. She had some cash, either $240 or $440 on her that she wanted to deposit. As the bank was closed, she decided to head home. She returned to her car, opened the driver’s side door and entered the vehicle. As she tried to close the door, she noticed that someone was holding the door. She saw a hand wearing a navy blue glove and she saw a man’s head bending over looking at her. The man was wearing a winter hat and scarf, despite the fact that it was July.
[33] She asked the man whether he needed help and if something was wrong. He replied “no” and told her to move over to the other seat. She was confused and asked “why?” He replied “just move to the other side”. She did not move and instead asked again if he needed help. The man then opened his jacket and showed her the top of a knife he had under his shirt in a wrap that was around his chest. He indicated words to the effect “if you don’t move, I will take it out and hurt you”.
[34] At this time, Mrs. S.N. became scared and emotional. She started to cry. She asked whether she could get out of the car in order to get over to the passenger seat and the man said no, directing her to move across the seats inside the car. The man then took her purse, car keys and cell phone. He said “no phone”. He inserted the key into the ignition but did not turn the car on. The man then said “Don’t speak. I want to take you somewhere”.
[35] Mrs. S.N. was terrified and tried offering her jewellery, cell phone and money to the man. She also indicated that she would ask her family to bring money if that was what he wanted. The man did not initially respond but when she repeated her offer, he replied “If you talk too much, I will hurt you”. As he was saying this, he pulled out the knife he had shown earlier and brought it close to her stomach area with the tip pointed towards her. He then told her to put her head down on her knees in what, she believed, was an attempt to hide her in the vehicle. He placed his hand on her head and tried to force her down into the foot well of the car. He also prevented her from rolling down the window.
[36] Mrs. S.N. was having trouble fitting in the foot well and suggested that it would be better if she went into the back seat of the car. The man agreed but would not let her get out of the car. Instead, he directed her to go to the back seat by passing in between the front seats.
[37] She feared that she was going to die and in an effort to prevent him from driving off she pretended to not understand his directions. She felt that if she could keep him talking, she had a chance of surviving. She spoke in short statements and tried to waste time in the hope that he would not start the car and drive off. During this interaction, he repeatedly stated that he wanted to take her somewhere.
[38] When Mrs. S.N. made it to the back seat, she observed her cell phone there. She grabbed it and quickly opened one of the back doors of the vehicle and escaped. She saw the man turn around to grab her but she managed to get out first. In doing so, she fell against the car parked next to hers and then fell back against her car. She next observed three women standing in the parking lot and began calling out for help. The man exited her vehicle holding the knife and her purse. The three women started screaming “Call 911”. The man said words to the effect “why did you get out?” He then ran off but was not able to move very quickly.
[39] At the direction of the three women, Mrs. S.N. managed to compose herself enough to snap a cell phone photograph of the man as he was running off. That photograph was marked as Exhibit 7. It shows a man in dark clothing walking away in between parked cars. Mrs. S.N. also managed to call 911.
[40] Police attended on scene and made observations of Mrs. S.N.’s vehicle. They observed and photographed a quantity of cash totalling $215 that was on the front passenger seat. They also photographed items that were scattered in the car. Police spoke with Mrs. S.N. who was in distress and needed medical attention. She was concerned about her heart condition and retrieved medication from the vehicle. She was taken by ambulance to hospital where she remained for a few days.
[41] Mrs. S.N. described the contents of her purse, and explained that certain items fell from her purse into the car but her driver’s licence, OHIP card and business cards were in a closed zippered pouch in her purse. As well, she described her key chain which had a small memento from a trip to Istanbul as well as a Longo’s points card attached to it.
[42] Mrs. S.N. provided various descriptions of her attacker to the first responders, as well as on the following day in a police interview. She generally described him as white, 5’9”, 63 to 64 years of age, wearing a blue zippered sweatshirt, sweat pants, black gloves and carrying a large knife. She indicated that his English was good and that he did not have an accent.
[43] She indicated that she could identify him in a picture. Subsequently, on September 2, 2014, Mrs. S.N. attended at a police station for the purpose of observing a photo line-up tendered as Exhibit 10. She selected photo #5, which is admitted to be a photograph of Mr. Ricciardi.
[44] On July 23, 2014, Mrs. S.N. was released from hospital and she went to her sister’s home which is near her apartment. While there, she received a phone call from her son, N.S., who indicated that he was at Mrs. S.N.’s apartment building and had observed a person he believed matched the description of Mrs. S.N.’s attacker. The person was present in the lobby of the apartment. Mrs. S.N. asked her son to send a photograph so she could see whether it was the same person. Her son took some photographs and emailed them to Mrs. S.N.’s sister, who then showed them to her. The photographs were tendered at Tab 2(c) of Exhibit 1 and as Exhibit 12(a-d). She recognized the man in the photographs as her attacker and noted that he was wearing the same clothes and was holding her house keys in his hand. She agreed in cross‑examination that she viewed these photographs prior to viewing the photo line-up on September 2, 2014.
[45] N.S. testified that on July 23, 2014, he transported his mother from the hospital to his aunt’s house. He heard from his brother, A.S., that a neighbour, S.A., had observed someone in the building who matched the description of Mrs. S.N.’s attacker. Indeed, Ms. S.A. testified and confirmed that she observed someone who caught her attention outside the lobby. She noted that he was wearing a hat and gloves, which was odd since it was July. She took two photographs of the man, entered as Exhibits 15(a) and (b), and noted that the man entered the lobby using keys and went up and down the elevators. She called N.S. to advise him of her observations.
[46] As a result of this information, N.S. went back to the residence with a number of family members. When they arrived they met S.A., who pointed out a man seated outside the lobby of the building. He was wearing a winter hat, black gloves, a black jacket and jeans. As they were watching the man, they saw him get up and enter the building through the lobby doors and then enter an elevator. The lobby has two sets of doors. The first set open freely. The second set require a lobby key. They watched the elevator and the man eventually emerged from the elevator and went back outside the lobby and sat on a bench.
[47] Mr. N.S. wanted to make sure this person was his mother’s attacker before calling 911 so he took some photographs with his cell phone and emailed them to his aunt. He received confirmation that the man and the attacker were one and the same so he called 911 as did his cousin.
[48] While waiting for police to attend, Mr. N.S. observed the man go back into the building through both sets of lobby doors and into an elevator. He recognized his mother’s key chain in the man’s hands, noting the memento purchased in Istanbul. When police arrived, they spoke with Mr. N.S who indicated that the man had entered the elevators. Moments later, the man exited the elevators and was arrested by police officers. He was identified as Mr. Ricciardi.
[49] On arrest, Mr. Ricciardi was found to be in possession of two sets of keys, one of which were the keys belonging to Mrs. S.N. A large knife with a 5 ½ inch serrated blade and a wooden handle was found tucked under his jacket and inside his waist, against a stretchy girdle. He appeared to be intoxicated. He also had black gloves.
[50] The events at Mrs. S.N.’s apartment, including the arrest, were captured on the security cameras at the lobby and entered as Exhibit 13.
[51] On July 24, 2014, police executed a search warrant at Mr. Ricciardi’s residence. While searching a desk in Mr. Ricciardi’s bedroom police found Mrs. S.N.’s purse, including pieces of her identification, credit and bank cards, and business cards. Her driver’s licence, bearing her home address, had been removed from the purse but was located in the same desk. Police also located a blue zippered sweatshirt hanging on the back of a chair.
[52] Police obtained security video footage from the exits at Baif Boulevard. In excerpts taken on July 19, 2014, a man is seen entering and leaving the building on several locations. On one occasion, he is seen wearing a winter hat with a white stripe. On another, he is seen wearing shoes that appear to have white soles. The video footage was entered as Exhibit 71. Stills taken from the footage were entered as Exhibit 69(a-f).
The Attack on Mrs. S.N. – Issues and Law
[53] Mr. Ricciardi is charged with attempt kidnapping, robbery, attempt sexual assault with a weapon, and carry concealed weapon in relation to the attack on Mrs. S.N.
[54] The central issue is the identity of the attacker. The defence concedes that if identity is established, Mr. Ricciardi is guilty of robbery and carry concealed weapon (Counts 3 and 5). The defence argues that even if identity is established there is insufficient evidence to establish an attempt kidnapping (Count 2). The defence argues that there is no evidence of an intent to commit a sexual assault (Count 4) and even if an intent to commit a sexual assault were inferred on the basis of all the evidence, that inference is not the only reasonable inference.
[55] The Crown’s position is that the evidence of identity is overwhelming. The description provided by Mrs. S.N. matches Mr. Ricciardi in key respects. The descriptions she provided are confirmed by the photographs and videos taken on July 23, 2014. Mrs. S.N. also picked Mr. Ricciardi out of a photo line-up on September 2, 2014. When this evidence is assessed in concert with the evidence found on Mr. Ricciardi on arrest and at his apartment upon execution of the search warrant, there is no issue that Mr. Ricciardi is Mrs. S.N.’s attacker.
[56] The Crown also argues that the offence of robbery is readily established by the taking of the purse and keys at knife point, and that the offence of attempt kidnapping is established by reference to Mr. Ricciardi’s repeated indications that he was going to take Mrs. S.N. “somewhere”. In terms of the sexual assault, the Crown argues that it is clear that Mr. Ricciardi’s purpose in attempting to kidnap Mrs. S.N. was in order to facilitate a sexual assault. That purpose was interrupted by her escape, but Mr. Ricciardi returned to her apartment days later to fulfill his intentions.
[57] I will start with a brief review of the law in relation to the counts stemming from this incident.
[58] An “attempt” is defined in section 24(1) of the Criminal Code as follows:
24(1) Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
[59] The actus reus of an attempt can encompass a very wide range of acts. Indeed, by definition “anything” done for the purpose of carrying out an intention meets the actus reus component of the offence. The only qualification is that the act committed must be one that is beyond a mere act of preparation: see R. v. Cline, 1956 150 (ON CA), [1956] O.R. 539 (Ont. C.A.), and R. v. Root, 2008 ONCA 869, at paras. 92-101. The mens rea for an attempt is the mens rea that is required for the offence that is being attempted.
[60] The actus reus of kidnapping consists of an abduction and asportation of a complainant against the complainant’s will. The element of movement is the key difference between the offence of kidnapping and the lesser and included offence of unlawful confinement: see R. v. Vu, 2012 SCC 40, at para. 47. The mens rea is satisfied if the accused has any one of the intents described in section 279(1) of the Criminal Code. In this case, Count 2 of the indictment particularizes the intent as an intent to cause Mrs. S.N. to be confined against her will in accordance with section 279(1)(a) of the Code.
[61] The offence of robbery can be committed in a number of ways as set out in section 343 of the Criminal Code. In this case, there is no issue that the attacker robbed Mrs. S.N. within the meaning of at least section 343(d) of the Code, which provides that a robbery is committed where someone steals from any person while armed with an offensive weapon or imitation thereof.
[62] Turning to the offence of sexual assault, the external elements of the offence require proof of a touching of a sexual nature in the absence of consent. The sexual nature component requires that the touching violate the sexual integrity of the complainant. The test of whether the touching was of a sexual nature is objective, though the intent or purpose of the assault may also be factors in considering whether the assault was sexual: see R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293, and R. v. Larue, 2003 SCC 22. To determine whether an assault is sexual, the court must consider the part of the body touched, the nature of the contact, the situation in which the contact occurred, the words or gestures that accompanied the contact, and all the surrounding circumstances: see R. v. Higginbottom (2001), 2001 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.).
[63] The mental element of the offence is an intention to touch and knowledge, recklessness or wilful blindness as to the absence of consent: see: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330. It is not necessary to prove that the accused’s intent was sexual in nature or in purpose: see R v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60, and R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333.
[64] The issue of consent does not arise on the facts of this case. The central issue is whether Mr. Ricciardi’s intent was to commit a sexual assault and whether he took steps, beyond acts of mere preparation, in furtherance of that intent.
The Attack on Mrs. S.N. – Analysis and Findings
[65] Mrs. S.N. was the victim of a terrifying attack that left her in fear for her life, hospitalized and traumatized. I find Mrs. S.N.’s evidence on the whole to be both credible and reliable. Her version of events was not seriously challenged in cross-examination. There were no significant internal or external inconsistencies. I find that she gave her evidence in a balanced and forthright manner. I also accept the evidence of her son, N.S., and neighbour, S.A. Neither were challenged forcefully and both were corroborated by the security video tendered into evidence.
[66] The evidence of identity is overwhelming. While I am cognizant of the frailties of identification evidence, I am nonetheless convinced beyond a reasonable doubt that Mr. Ricciardi attacked Mrs. S.N. on July 19, 2014. I base this finding on the following:
a. Mr. Ricciardi was arrested on July 23, 2014 at Mrs. S.N.’s apartment, four days after the incident. He was seen loitering in the lobby area of the apartment and was observed to take the elevator up and down on more than one occasion. He had Mrs. S.N.’s keys in his possession and used them to gain entry to her apartment lobby.
b. When his apartment was searched on July 25, 2014, police found Mrs. S.N.’s purse and identification in a drawer in Mr. Ricciardi’s bedroom. Her driver’s licence, bearing her home address, had been removed from her purse and was found in the same desk drawer.
c. The factors described in (a) and (b) give rise to a very strong inference of guilt. As discussed above, the doctrine of recent possession permits an inference of guilt in circumstances where a person is found in the unexplained and recent possession of stolen items. While the inference is not mandatory, on the facts of this case, Mr. Ricciardi’s possession of the complainant’s keys and purse four days after her attack, in combination with his attendance at her residence, his movements while at the residence, and his possession of a knife at the residence, almost inescapably establish his identity as the attacker.
d. Shortly after the incident and before she viewed the photographs on July 23, 2014, Mrs. S.N. provided detailed descriptions of her attacker that match Mr. Ricciardi’s general appearance at the relevant time. I note she gave descriptions to more than one person. The mere consistent repetition of the description does not add any evidentiary value to the description. Rather, the evidence of prior out of court identification and/or description of the accused forms part of the identification process that culminates in the identification evidence in court: see R. v. Tat (1997), 1997 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.), at paras. 35-37.
e. Mrs. S.N. instantly recognized Mr. Ricciardi as her attacker in the photographs that were emailed to her by her son on July 23, 2015. Mr. Ricciardi is wearing the same clothing worn by the attacker a few days earlier, including gloves, hat and jacket, despite the fact that it is July.
f. Mrs. S.N. picked Mr. Ricciardi out of a line-up administered on September 2, 2014. I acknowledge the defence argument that the line-up suffers from a degree of tainting due to the fact that Mrs. S.N. had observed the photographs of Mr. Ricciardi taken on July 23, 2014. Therefore, there is a risk that she identified the person in the July 23, 2014 photographs and not her actual attacker, assuming they might be different. However, I am not considering the line-up in isolation. Rather, I am considering the evidence of identity in its totality. To the extent that viewing the photographs might have impacted the identification process, that impact is more than compensated for by the factors listed in (a) and (b) above.
[67] In submissions, the Crown argued that I could find further support for the identity of the attacker at Hillcrest Mall by comparing Mr. Ricciardi’s appearance on July 23, 2014, the descriptions given by Mrs. S.N. about her attacker on July 19, 2014 and the security video footage taken from Baif Boulevard on July 19, 2014.
[68] The security video taken at Mr. Ricciardi’s residence on July 19, 2014 and still photographs taken from the video shows a person wearing coat and a hat with a white stripe similar to the coat and winter hat with stripes seen on Mr. Ricciardi on July 23, 2014. As well, the hair line of the person depicted in the stills generally matches the hairline of the person that can be seen on the stills of Mr. Ricciardi taken from his videotaped statement on July 24, 2015. Lastly, the man in the photographs can be seen wearing shoes that appear to have a white sole on both the stills taken on July 19, 2014 and the photographs taken on July 23, 2014. The similarity of clothing items and hair lines in combination with his admitted residence at Baif Boulevard and his general appearance in both sets of stills and videos, leads me to the conclusion that he is the person depicted in the July 19, 2014 videos and stills. However, this evidence is of limited assistance in determining whether he was the attacker at the Hillcrest Mall, as it merely establishes a connection between Mr. Ricciardi on July 23, 2014 and Mr. Ricciardi’s presence at Baif Boulevard on July 19, 2014. At best, this evidence shows that Mr. Ricciardi was in close proximity of Hillcrest Mall at the relevant time and was wearing similar items of clothing on the day of the attack. That said, nothing in this evidence detracts from my conclusion that the identity of Mr. Ricciardi as the attacker has been amply established by the evidence discussed above.
[69] In view of these findings and in accordance with the concession of defence counsel, I find Mr. Ricciardi guilty of robbery (Count 3) and carry concealed weapon (Count 5). In relation to the latter count, I note that the indictment is particularized with a July 23, 2014 offence date. There is no issue that on that date Mr. Ricciardi was in possession of a concealed weapon, a knife with a serrated blade, which was discovered upon his arrest. I also have no hesitation accepting Mrs. S.N.’s evidence that her attacker, Mr. Ricciardi, had a knife inside his jacket, strapped to his chest and that he brandished the knife during the incident on July 19, 2014.
[70] In terms of the attempt kidnapping count, I accept Mrs. S.N.’s evidence that Mr. Ricciardi repeatedly told her that he was going to take her somewhere. I accept his comments as direct evidence of his intent. In addition, he told her to move across the seat onto the passenger side of the vehicle and then entered the driver’s seat. He took the keys for the car and put them in the ignition. He threatened her with a knife that he had concealed on his person and tried to force her head down into the foot well of the vehicle. The only reasonable inference available on these facts is that Mr. Ricciardi intended to take control of Mrs. S.N. and move her away from the parking lot to an undisclosed location using her vehicle. I am satisfied that had she not escaped, he would have been successful. I am also satisfied that he took steps beyond acts of mere preparation in furtherance of his intent. I therefore find Mr. Ricciardi guilty of attempt kidnapping (Count 2).
[71] I turn lastly to the count of attempt sexual assault. I am deeply troubled by Mr. Ricciardi’s conduct. It is terrifying. However, that fact alone does not make it an attempt sexual assault. There was no non-consensual physical contact that objectively violated Mrs. S.N.’s sexual integrity. However, and to state the obvious, the Crown does not need to prove a completed act of sexual assault in order to secure a conviction for the offence of attempt sexual assault. There were also no sexual comments, gestures or threats made. Lastly, while Mr. Ricciardi threatened to take Mrs. S.N. somewhere on repeated occasions, he never indicated or suggested for what purpose.
[72] The absence of any sexual contact or sex related conduct during the incident presents a challenge. In most cases where there is no stated or declared intent, the intent may be inferred from the conduct involved. Here I am left to discern Mr. Ricciardi’s intent in the absence of physical acts that objectively engage the complainant’s sexual integrity and in the absence of any comments or conduct that explicitly relate to sex. To be clear, the intent required is only an intent to commit a non-consensual touching in circumstances that objectively violate the sexual integrity of the complainant. Nonetheless, a finding of intent needs to be grounded in the evidence and not on speculation.
[73] The Crown’s position on this difficult issue is effectively rhetorical: what else would Mr. Ricciardi’s intent be if not to kidnap and sexually assault Mrs. S.N? The Crown points to Mr. Ricciardi’s subsequent armed attendance at Mrs. S.N.’s apartment as further support for the proposition that Mr. Ricciardi’s intent was to sexually assault the complainant. He was initially thwarted in his efforts and returned days later to complete the job. If his intent was merely to rob Mrs. S.N. it would not make any sense for him to return to her apartment.
[74] The defence argues that even if an inference arises that Mr. Ricciardi’s intent was to commit a sexual assault, it is not the only inference available. On the evidence, it may have been Mr. Ricciardi’s intent to further rob, attack and/or terrorize Mrs. S.N.
[75] Mr. Ricciardi is only charged with attempt sexual assault. If Mr. Ricciardi’s intent was to commit a sexual assault, any act in furtherance of that intent beyond an act of mere preparation would suffice. In this regard, assuming I find he had the requisite intent, I would readily find that the incident as described by Mrs. S.N. would suffice as an act in furtherance of the intent.
[76] Having given this matter anxious deliberation, I am satisfied that it was possibly Mr. Ricciardi’s intent to sexual assault Mrs. S.N. However, I am not satisfied beyond a reasonable doubt that this was his intent. In order to be satisfied beyond a reasonable doubt on this issue I would need to find that an intent to commit a sexual assault is the only reasonable inference that flows from the evidence: see R. v. Villaroman, 2016 SCC 33. To be clear, I need not be satisfied that the commission of sexual assault was his only intent. Rather, I need to be satisfied that the only reasonable inference is that Mr. Ricciardi intended to commit at least a sexual assault.
[77] In my view, while an intent to commit sexual assault is an available, perhaps even strong inference, it is not the only reasonable inference. Competing reasonable inferences are that Mr. Ricciardi’s intent was to murder, torture or physically harm Mrs. S.N. He may also have wanted to continue the robbery at a different location given the public nature of the parking lot. His attendance back at her apartment days later does not assist in discerning what his intent was in the parking lot, as his attendance could serve any one of the competing purposes as well.
[78] As a result, I find Mr. Ricciardi not guilty of attempt sexual assault (Count 4).
The Attack on Mrs. G.E. – February 11, 2015
[79] Mrs. G.E., a 70 year old widow, lives in an apartment at M[...] Street in Richmond Hill. M[…] Street runs south from Observatory Lane which at Yonge Street turns into Baif Boulevard, the street where Mr. Ricciardi was residing at the time of the incident. It is a short walk between the two locations.
[80] Mrs. G.E. had been living at the apartment for approximately one month. She was familiar with the nearby area, including Hillcrest Mall where she used to visit on a daily basis. A community bus takes local residents to the mall with a number of stops along the way, including a stop at Baif Boulevard.
[81] On February 11, 2015, Mrs. G.E. went to the mall to do some shopping and to meet a friend. She decided to take a taxi because the weather was very cold and she did not want to wait outside. She left the mall shortly after 3:00 p.m. and was dropped off at her apartment approximately eight minutes later.
[82] When she entered the lobby to her apartment, there was a man standing to her left with a toque on and a scarf across his face. He had a dark winter coat that did not appear heavy. She could not see his hair or skin colour but noted he looked rugged and approximately 55 to 60 years of age, possibly with a slight Russian or Eastern European accent. He pulled down the scarf and said “It’s very cold”. She replied “yes” and entered the elevator pressing “3” for her floor. The man followed her into the elevator and pressed “8”. She exited the elevator on her floor and began walking towards her unit. She did not look at the man, though noted that he seemed “creepy”.
[83] Mrs. G.E unlocked her door, entered her apartment and put down her parcels. When she turned to remove the keys from the door, a person said to her “you left the keys in the door”. She did not recognize this person.
[84] As she went to retrieve the keys, the person placed a hand on the keys. She pushed against the door but he managed to push the door open, pushing her against the closet in the process. He entered the unit and when she started to scream and yell, he put his hand across her mouth. He repeated “you left your keys in the door” and she managed to push him out the door. She then immediately locked the door.
[85] Mrs. G.E. does not know whether the person who entered her apartment was the same person she encountered in the lobby and elevator of her building. Mrs. G.E. had the opportunity to observe the surveillance video compilation showing a man in the lobby and on the elevator with her. She was unable to identify him as the person who entered her apartment.
[86] She indicated that when the man was in her apartment, she was not focussed on his appearance. Rather, she was focussed on getting him out as he was “violating” her. While in the apartment, he made no demands for money or property though she was wearing jewellery. Apart from placing his hand over her mouth he did not touch her.
[87] On the following day, February 12, 2015, Mrs. G.E. was speaking with the property manager of the M[…]Street buildings (25 and M[...] Street), Pat Wright. While there, the property manager received a call from one of the superintendents who indicated that the man who had been in the building the day before was back in the building.
[88] Mrs. G.E. and the property manager drove along Observatory Lane onto Baif Boulevard, and when they were in front of Baif Boulevard, they observed a man in dark clothing and sunglasses walking along. Mrs. G.E. took a photograph of the person walking as she and the property manager believed he was the man from the day prior. She could not say whether the man she saw on the street was the man who came into the elevator and/or entered her unit. The photograph taken by Mrs. G.E. was entered as Tab 4 of Exhibit 1.
[89] Mrs. G.E. was shown a photo line-up by police and was not able to choose anyone.
[90] At the time of the incident, Mr. Bujar Lutaj was the superintendent at M[...] Street. He described the various security cameras that provided surveillance of the buildings that comprised the complex he worked at. At Ms. Wright’s request, Mr. Lutaj reviewed the security footage taken on February 11, 2015. He discovered that the footage captured a man wearing black pants, winter jacket and a mask that covered most of his face, entering the lobby of the building on the day in question. He noted that the person walked with his feet open, almost like a “duck walk”.
[91] On February 12, 2015, Mr. Lutaj was performing some duties at M[...] Street. He entered the elevator and immediately noticed the “open feet” of a person on the elevator. As he lifted his eyes, he noticed that the man was wearing a heavy winter jacket, blue jeans and a mask covering most of his face. He could see that the man had “luggage” under his eyes. He looked over 50, “not white and not black, mostly Middle-East” in complexion. He noted that the pants looked different from the day prior, though the jacket looked similar. Mr. Lutaj was suspicious and he thought that this man might be the same man from the day prior so he decided to follow him to see where he might go. The man exited on the second floor as did Mr. Lutaj. The man then appeared to be looking at door numbers and Mr. Lutaj approached and asked him if he needed any help. The man indicated that he needed to go the third floor. Mr. Lutaj directed the man onto the elevator and then, still believing it might be the man from the day prior, proceeded to walk up to the third floor to see if the man emerged from the elevator. He did not see the man on the third floor.
[92] Mr. Lutaj exited the building and saw the man walking outside on M[…] Street. Mr. Lutaj walked towards the property management office and when he arrived there he ran into Mrs. Wright and Mrs. G.E. He told them that the person in the security footage was outside and both Mrs. Wright and Mrs. G.E. left to find him. Mr. Lutaj did not go with them.
[93] Pat Wright, the building manager, testified that on February 11, 2015, she learned of the incident involving Mrs. G.E. She then reviewed the security camera footage and noted that a man could be seen following Mrs. G.E. onto the elevator. The man was wearing a heavy coat with scarf wrapped around his face and a hat pulled down. She confirmed that it was cold outside.
[94] While Mrs. Wright was speaking with Mrs. G.E. in the management office, she received a called from Mr. Lutaj who indicated that the man from the day prior was back at the building. Mrs. Wright quickly walked outside and could see a man in a coat walking away from the building. She went back to the office and retrieved Mrs. G.E. They then drove in Mrs. Wright’s car to see if they could find the man.
[95] They caught up to a man walking on Observatory Lane at Yonge Street. The man crossed Yonge Street onto Baif Boulevard. He looked different in that he was not wearing a scarf, though he had a dark coat, a knit toque, jeans and sunglasses. She described his ethnicity as Mediterranean. She asked Mrs. G.E. if he was the man and Mrs. G.E. said yes. She stopped her vehicle and Mrs. G.E. took a photograph with her phone.
[96] When she initially reviewed the video, she did not particularly notice the gait of the person seen entering the lobby and elevator. However, on the following date after watching the person walk along Observatory Lane and Baif Boulevard, she noticed his gait and concluded that it was the same motion she had seen in the video. She described his gait as a “duck walk” like a “waddle”.
[97] She confirmed that it was Mrs. G.E. who pointed out the man walking on Observatory Lane and not the other way around. He was the only person on the sidewalk at the time.
[98] A video timeline, including excerpts of the security videos taken at M[…] Street and Baif Boulevard on February 11 and 12, 2015, was tendered as Exhibit 38. A printed chronology with still photographs taken from the videos was tendered as Exhibit 38A. Photographs of the hallway leading to Mrs. G.E.’s apartment were tendered as Exhibit 37(a) and (b).
[99] The security video corroborates in large measure Mrs. G.E’s description of what happened to her prior to her arrival at her apartment unit. The video also corroborates Mr. Lutaj’s description of what he did when he saw the person he believed was involved.
Attack on Mrs. G.E. – Analysis and Findings
[100] While Mrs. G.E. was not certain that the person who approached her at her door was the same person who she dealt with on the elevator, I am satisfied beyond a reasonable doubt that it was the same person for the following reasons:
a. The man appears to follow Mrs. G.E. into the lobby, stays in close proximity to her, and follows her into the elevator.
b. When Mrs. G.E exits the elevator on her floor, the man on the elevator steps to the edge of the elevator door and peers out. He hesitates and moves back into the elevator slightly as if he is trying to remain out of sight while observing where Mrs. G.E. went. He then exits the elevator and heads in the same direction as Mrs. G.E.
c. The photographs filed depict her apartment door in very close proximity to the elevator. The apartment door is slightly recessed from the elevator exit but along the same wall and immediately next to the elevator. I infer that someone peering out of the elevator door in the manner described above could readily see what a person was doing at the doorway to Mrs. G.E’s apartment.
d. The man on the elevator did not get off on the floor he had initially selected, instead he exited on Mrs. G.E.’s floor after peering out to see where she went.
e. Mrs. G.E. describes the incident as happening in seconds – essentially the time required for her to unlock and open her door, enter her apartment, put down her parcels and turn back to the door to retrieve her keys. The timing supports the inference that the man who followed her out of the elevator is the man who entered her apartment.
[101] The more difficult issue is whether the person seen on the February 11, 2015 video is Mr. Ricciardi. This determination requires a number of intermediate factual determinations. First, is the person seen on the February 11, 2015 video taken at M[...] Street the same person that is observed by Mr. Lutaj the next day on February 12, 2015? If so, is that person the same person that was observed and photographed by Mrs. G.E. while she was with Mrs. Wright on February 12, 2015? Lastly, is the person who was arrested on February 12, 2015, i.e. Mr. Ricciardi, the same person as the person depicted in the photograph taken by Mrs. G.E and/or the person in the video of February 11 and 12, 2015 taken at M[...] Street?
[102] The Crown seeks to establish identity on the basis of the distinctive manner of walking demonstrated in the video taken February 11 and February 12, 2015, the distinctive feature of “luggage under the eyes” described by Mr. Lutaj and arguably visible in Mr. Ricciardi’s arrest photos, the identification opinion evidence offered by Det. Godber that the person in the photograph taken by Mrs. G.E. is Mr. Ricciardi, and the timing of certain observations made by the surveillance and arrest team who saw a person matching Mr. Ricciardi’s description using a cell phone – a fact confirmed by reference to Mr. Ricciardi’s cell phone records, which show a call between his cell phone and his home phone at the relevant time. Lastly, the Crown points to the presence of a toque found during the search incident to arrest and a pair of sunglasses found during the execution of the search warrant at Mr. Ricciardi’s apartment. The Crown argues that when viewed in totality, the evidence supports the singular inference that Mr. Ricciardi is the man who confronted Mrs. G.E. in her apartment.
[103] The defence argues that the necessary links required to establish identity beyond a reasonable doubt are missing. In particular, the defence argues that Mrs. G.E. cannot describe her attacker in any useful sense. Further, the defence argues that boiled down to its essence, the identification evidence against Mr. Ricciardi amounts to evidence of resemblance at best especially, given the generic nature of the clothing and physical descriptions.
[104] In the circumstances of this case, there is effectively no direct evidence of identity. Mrs. G.E. could not identify her attacker. She was not certain that the man on the elevator was the man who entered her apartment, nor was she certain that the man she and Mrs. Wright photographed was the man in the elevator and/or the man in the apartment.
[105] However, in my view, there exists a body of circumstantial evidence that supports a finding that Mr. Ricciardi is indeed the man in the elevator and in the apartment. I say this for the following reasons:
a. An arrest photo taken January 22, 2013, a time predating this incident, was tendered as Exhibit 67(b). In that photo, Mr. Ricciardi is seen wearing a black coat with fold down lapels. On the lapels are four shiny buttons, two per side. The buttons are clearly visible. On the security video of February 11, 2015, the man entering the lobby at M[...] Street is wearing a similar looking coat and when the man turns towards the cameras, four buttons are visible on the lapels of the coat. Lastly, in a security video taken at Baif Boulevard on February 11, 2015 at 18:11:02 on the video time stamp, a man is seen entering the apartment in dark coat with lapel buttons.
b. On the photograph taken by Mrs. G.E and Mrs. Wright on February 12, 2015, the man in the photograph is wearing a similar coat and at least one of the lapel buttons is visible amongst what appears to be snowflakes. As well, on that same date, the security video from Baif Boulevard shows a man enter the front door of Baif Boulevard, at approximately 3:07 p.m., wearing a jacket that reveals the lapel buttons. On arrest on February 12, 2015, Mr. Ricciardi was found wearing a black jacket with lapel buttons: see Photo 11 of Exhibit 26.
c. In the portion of the February 12, 2015 security video that depicts the scene at M[...] Street, a man is seen leaving the building at approximately 2:52 p.m. While the man in these scenes is wearing a dark coat, no lapel buttons are visible. However, it appears that the lapels and collar are flipped up and buttoned shut. This can be seen when the man enters the elevator and turns his back to the camera. This can also be seen in Photo 10 of Exhibit 26, which shows the jacket found on Mr. Ricciardi on arrest in a buttoned up fashion.
d. When the person enters the front door of Baif Boulevard at 3:07 p.m. he is seen speaking on a red cell phone. In his voluntary statement to police, Mr. Ricciardi confirms that he uses a red or pink “girl’s” cell phone. It is also an admitted fact that Mr. Ricciardi’s surety, Mr. Michalchuk, observed Mr. Ricciardi using a pink cell phone. As well, a red cell phone was found in Mr. Ricciardi’s bedroom upon execution of the search warrant on July 24, 2014: see Photo 279 of Exhibit 1, Tab 3. Cell phone records confirm that a call from Mr. Ricciardi’s cell phone to his home phone was placed around the time of these observations. Lastly, upon arrest on February 12, 2015, Mr. Ricciardi was found in possession of a red/pink cell phone: see Photos 6 – 12 of Exhibit 26.
e. The man leaving the elevator and walking towards Mrs. G.E.’s apartment exhibits an open foot “duck walk”. This distinctive walk can be seen during other portions of the February 11 and February 12, 2015 videos, including portions of the video taken at Baif Boulevard. As well, it matches the description of the walk observed by both Mr. Lutaj and Mrs. Wright. The walk is a distinctive feature found across all the video samples.
f. Having watched the videos repeatedly, I am satisfied that the person Mr. Lutaj sees on February 12, 2015 is the person that he saw on the security footage taken on February 11, 2015. I note the described similarities in dress, general physical appearance and the somewhat distinctive manner of standing/walking with open feet, as well as the presence of these features on the video.
g. As well, Mr. Lutaj notes the “heavy luggage” under the eyes of the man he encounters on the elevator on February 12, 2015. Photographs of Mr. Ricciardi taken on February 13, 2015 following his arrest for this incident show that he has pronounced bags under his eyes. He displays this same distinctive physical feature in the earlier arrest photos tendered into evidence as well as in court before me.
h. Apart from the lapel buttons, the clothing worn by the person is not entirely distinctive. However, the videos show a consistency of clothing between the person in the video taken at Baif Boulevard and M[...] Street on both February 11 and Feb 12, 2015. As well, sunglasses are seen in the videos taken at both locations on February 12, 2015 and the photograph taken by Mrs. G.E., and Mrs. Wright shows a man wearing sunglasses. Similar looking sunglasses were found in Mr. Ricciardi’s bedroom when the search warrant was executed on February 13, 2015: see Photo 413 and 414 at Exhibit 1, Tab 5.
i. In the photograph taken by Mrs. G.E. and Mrs. Wright, the man in the photograph appears to have his fingers folded over his thumb. In the arrest photos of Mr. Ricciardi taken on January 22, 2013 and July 14, 2014 (Exhibits 67(b) and (c)), Mr. Ricciardi can be seen with his fingers closed over top of his thumbs.
j. The visible physical attributes of the man in the video are roughly consistent across the videos. He appears to be a white male of some complexion, roughly 50 to 60 years of age, with an average build and average height. Mr. Ricciardi fits the general description of the subject.
k. The timing of the events as revealed in the security videos from both Baif Boulevard and M[…] Street, in combination with the close physical proximity of the locations, support the existence of an opportunity for someone to walk between the locations within the time frames revealed.
l. None of the facts above, standing alone, would support a finding of identity beyond a reasonable doubt. However, when I consider the cumulative weight of all of this evidence, I find that Mr. Ricciardi is the man seen in the photograph taken by Mrs. G.E. and Mrs. Wright. Mr. Ricciardi is also the person observed by Mr. Lutaj on the February 12, 2015. I also find that he is the person seen in the videos of 15 Baif taken on February 11 and 12, 2015. He is also the person seen on the videos of M[…] Street taken on February 11 and 12, 2015. The combination of facts as described creates a compelling matrix that leaves open only one reasonable conclusion; that Mr. Ricciardi is the person who encountered Mrs. G.E. in her apartment on February 11, 2015.
m. In making these findings I place no weight on the opinion evidence proffered by Det. Godber. While I ruled that Det. Godber would be permitted to given some limited evidence on this issue of identification based on his personal experiences with Mr. Ricciardi, in cross-examination he agreed that he only dealt with Mr. Ricciardi in person once and that when compared with the mug shots taken on arrest, there was nothing additional about Mr. Ricciardi’s facial features that he gleaned from his personal interactions. As a result, when it comes to Mr. Ricciardi’s facial features, Det. Godber was in no better position than I as trier of fact to assess the purported similarities in Mr. Ricciardi’s facial features.
[106] I turn next to assessing what if any offences have been proven in relation to this incident. In submissions, the defence conceded that if identification was established, a finding of guilt followed on Count 11 (break and enter), Count 12 (assault) and Count 13 (wearing a mask with intent to commit an offence). These concessions are fair and well supported by the evidence.
[107] The defence disputes the remaining three counts which I will now address in order.
[108] Count 14 alleges that Mr. Ricciardi unlawfully confined Mrs. G.E. during the incident in her apartment.
[109]Under section 279(2) of the Criminal Code it is an offence to unlawfully confine, imprison or forcibly seize another person. In R. v. Luxton (1990), 1990 83 (SCC), 58 C.C.C. (3d) 449 (S.C.C.), the Supreme Court endorsed the following definition of unlawful confinement: the use of physical restraint contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another.
[110] The element of confinement requires a restriction of liberty for some period of time. The amount of time must be significant but need not be substantial: see R. v. Pritchard (2008), 2012 SCC 40, 288 C.C.C. (3d) 405 (S.C.C.) and R. v. Mullings, 2005 24763 (ONSC). The Crown is not required to establish that the confinement occurred for that the entire time the parties were together, or that there was total physical restraint: see R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.).
[111] Applying this test to the facts of this case, I am not satisfied beyond a reasonable doubt that Mr. Ricciardi unlawfully confined Mrs. G.E. in her apartment. The interaction with her was very brief. Apart from covering her mouth with his hand, there was no attempt to restrain or confine her. While the covering of her mouth was an assault, I find it was aimed at getting her to stop screaming and not an attempt to confine her or restrict her liberty to move from one place to another. Indeed, the assault was immediately followed by Mr. Ricciardi repeating “you left your keys in the door”. Mrs. G.E. then managed to push Mr. Ricciardi back out the door. While I am satisfied that he forcibly entered her apartment and assaulted her, I am not satisfied that in committing these offences he also unlawfully confined her.
[112] I therefore find him not guilty of unlawful confinement (Count 14).
[113] Count 15 alleges that Mr. Ricciardi attempted to sexually assault Mrs. G.E. In relation to this count, I reiterate my review of the law and analysis as set out above in relation to Mrs. S.N.
[114] I am unable to conclude beyond a reasonable doubt that Mr. Ricciardi’s intent was to commit a sexual assault. As discussed, in order to convict I would need to be satisfied that the only available inference was that Mr. Ricciardi intended to commit a sexual assault either alone or in combination with another offence.
[115] There is nothing in his conduct that gives rise to this singular inference. While on the evidence before me it is reasonably possible perhaps, even probable that Mr. Ricciardi intended to sexually assault Mrs. G.E., his intent could also have been to torture, murder, rob, confine, or terrorize Mrs. G.E. There is nothing in the evidence that permits me to conclude beyond a reasonable doubt that his intent was to commit a sexual assault. As a result, I find Mr. Ricciardi not guilty of attempt sexual assault (Count 15).
[116] In reaching this conclusion, I note that when the search warrant was executed on Mr. Ricciardi’s residence on February 13, 2015, police found a set of handcuffs tucked into the open temples of his sunglasses. The obvious inference is that the handcuffs were used along with the sunglasses and placed on the desk next to Mr. Ricciardi’s bed once he returned home, much like one might place a wallet and keys. I have found that Mr. Ricciardi was wearing sunglasses and I find that the sunglasses in his bedroom are the sunglasses he was wearing. Given the proximity in time to his arrest, I also conclude that Mr. Ricciardi would have left his sunglasses at the apartment shortly prior to his arrest. Lastly, I find that he had the handcuffs in his possession on February 12, 2015 when he returned to Mrs. G.E.’s apartment. I am unable to determine whether he had the handcuffs in his possession on February 11, 2015 when he entered Mrs. G.E. apartment.
[117] The presence of the handcuffs in Mr. Ricciardi’s possession when he re-attended the residence on February 12, 2015 strongly supports the inference of a nefarious and likely violent purpose or intent on Mr. Ricciardi’s part. That said, the handcuffs do not assist me in discerning the exact nature of his nefarious intent.
[118] The final count in relation to Mrs. G.E. alleges that Mr. Ricciardi criminally harassed Mrs. G.E between February 11 and February 12, 2015.
[119] In order to prove criminal harassment, the Crown must establish that; the accused has engaged in the conduct set out in section 264(2)(a), (b), (c), or (d) of the Criminal Code; the complainant was harassed; the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and, the complainant's fear was, in all the circumstances, reasonable: see: R. v. Kosikar (1999), 1999 3775 (ON CA), 138 C.C.C. (3d) 217 (Ont. C.A.), R. v. Sillip, 1997 ABCA 346 and R. v. Kordrostami (2000), 2000 5670 (ON CA), 143 C.C.C. (3d) 488 (Ont. C.A.).
[120] “Harassed" is defined as "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered": see R. v. Lamontagne (1998), 1998 13048 (QC CA), 129 C.C.C. (3d) 181 (Que. C.A.).
[121] The Crown argues that Mr. Ricciardi engaged in the prohibited conduct described in subsection 264 (2) (c) and (d) by “besetting or watching the dwelling house, or place where the other person, or anyone known to them, resides…” and/or by “engaging in threatening conduct directed at the other person…”
[122] There is no doubt that Mrs. G.E was terrified by her encounter with Mr. Ricciardi. She did not sleep in her apartment on the night of February 11, 2015, and she attended at the property manager’s office the next day to ask about having new locks installed on her door. Mrs. G.E.’s fear was heightened the next day when she learned that a person matching the description from the day prior was back at her apartment complex. There is no issue that Mrs. G.E was harassed as that term has been defined in the case law. There is also no issue that Mrs. G.E reasonably feared for her safety and that this fear was caused by Mr. Ricciardi’s conduct.
[123] The issue is whether Mr. Ricciardi’s conduct amounts to conduct prohibited under section 264(2) of the Criminal Code. Starting with section 264(2)(c), I am not satisfied that Mr. Ricciardi engaged in watching or besetting of Mr. G.E.’s residence in a manner that caused her to fear for her safety. The incident on February 11, 2015 was essentially a home invasion and not a watching or besetting of Mrs. G.E.’s residence. Mr. Ricciardi’s attendance at M[...] Street on February 12, 2015 was only brought to her attention by Mr. Lutaj coincidentally. It is not clear whether he told her the particulars of what he observed Mr. Ricciardi doing. Even assuming that Mr. Ricciardi was watching and besetting Mrs. G.E’s apartment on February 12, 2015, I am not satisfied that this fact came to her attention and caused her to be harassed. Moreover, for it to be an offence, Mr. Ricciardi has to know, or at least be reckless to the fact, that the person is harassed by the conduct. The evidence leaves me with a reasonable doubt on this issue.
[124] Turning to section 264(2)(d), the law is clear that a single threatening act can amount to criminal harassment: see R. v. Hawkins (2006), 2006 BCCA 498, 215 C.C.C. (3d) 419 (B.C.C.A.) and Kosikar, supra. In my view, the threatening conduct displayed by Mr. Ricciardi on February 11, 2015, namely the forcible entry into Mrs. G.E’s apartment, the covering of her mouth with his hand and the struggle in her foyer resulting in him being pushed out the door, is threatening conduct within the scope of section 264(2)(d). It is conduct that would clearly harass Mrs. G.E. and cause her to reasonably fear for her safety. The fact that he attends at her residence the next day adds to the threatening nature of his conduct and the reasonableness of her fear and supports the real prospect that the complainant would be harassed into the future: see R. v. Kohl, 2009 ONCA 100, at para. 28, citing R. v. O’Connor, 2008 ONCA 206 at para 4.
[125] As a result, I find Mr. Ricciardi guilty of criminal harassment (Count 16).
The Attack on Mrs. C.V. – January 26, 2015
[126] Mr. Ricciardi is charged with the following offences in relation to the attack on Ms. C.V.: assault with a weapon (Count 7), having his face masked with intent to commit the indictable offence of assault with a weapon (Count 8), unlawful confinement (Count 9), and attempt sexual assault with a weapon (Count 10).
[127] The only issue in relation to Count 7 and Count 8 is identification. In relation to Count 9, the defence argues that if identification is made out, there remains an issue as to whether the Crown has proven an unlawful confinement apart from the conduct incidental to the assault with a weapon. Lastly, in relation to the offence of attempt sexual assault, the defence argues that even if identification is established, there is an insufficient evidentiary basis upon which one can infer an intent to commit a sexual assault.
[128] On January 26, 2015, Ms. C.V. was working at the F[…] boutique on Bloor Street in Toronto. She arrived at work by subway, exiting at the Delaware Avenue exit of the Ossington Subway Station. That exit is approximately a 1½ minutes from the boutique. There is a back door to the boutique that opens onto an alleyway that joins Delaware Avenue right where the TTC entrance is. Photographs of the scene and the boutique were tendered as Exhibit 22 and show the proximity of the laneway to the TTC exit.
[129] Ms. C.V. was alone at work that day. Her hours were 11 a.m. to 6:00 p.m. but she was planning on leaving early, at approximately 5:45 p.m., to attend to other matters. At approximately 2:00 or 3:00 p.m. she noticed a man outside the boutique. He appeared to be looking at the store hours sign and he then entered the boutique. There was no one else inside the boutique at this time.
[130] The man approached Ms. C.V. and asked whether he needed an appointment to see a seamstress. She replied “yes” and he seemed surprised. She asked who was getting married. The man indicated that it was his brother and that the bride-to-be was interested in “princess gowns”. He asked to see some dresses and Ms. C.V. obliged. She asked him to take off his shoes before entering the store as this was standard practice in order to prevent damage to the dresses. After showing some dresses, Ms. C.V. indicated that she would be happy to have the bride-to-be make an appointment and attend at the boutique. She gave the man a business card and he left.
[131] During this initial interaction, the man was wearing a knit balaclava that covered his neck and forehead, but not his eyes and mouth. It was a very cold day outside, however, the man did not remove the balaclava once inside the boutique. Ms. C.V. also noted that the man was wearing black leather shoes with laces, black pants and a black or dark green hoodie with the hood sticking up over his jacket, which appeared to be leather. He was also wearing black leather gloves.
[132] At approximately 5:45 p.m., Ms. C.V. retrieved her coat from the back of the boutique and was preparing to leave. She turned to face the front of the store and noted that the man she had seen earlier had returned and was inside the store again. He said “I’m back” and then asked to see some dresses at the back of the store. While she showed him some dresses, she repeated that it would be better if the bride-to-be came into the store. She noted that the man was wearing his shoes inside the store this time, and when she looked at his shoes he said “I know, I’m supposed to take them off”.
[133] Ms. C.V. next remembered looking to the front of the store and seeing the owner, Ms. J.D., enter and stand near the front desk. Ms. C.V. was then punched in the face with a closed fist. She lost her balance and fell on the floor, ending up on her back with her glasses off. She began screaming for help and the man crouched over her and pulled out a knife. He covered her mouth with his hand and said, “Stop screaming or I will slit your throat. Stop screaming or I will kill you. Do you understand?”
[134] Ms. C.V. was holding the man’s wrist to keep the knife away from her. Nonetheless, the knife was close to her face and he was leaning over her. She complied with his demand to stop screaming and nodded. He kept his hand over her mouth. The tone of his voice was very aggressive. This portion of the incident lasted approximately one minute.
[135] The man next told her to roll over onto her stomach but before she could do so, a person inside the store called out “Hello”. At this point, the man went to the front of the store, then returned to the back of store. He told Ms. C.V. to open the back door. The man exited out the back door but slipped and fell on the ice. Ms. C.V. quickly closed the back door. She observed the man put the knife inside his coat. Moments later the police were on scene.
[136] Ms. C.V. suffered some bruising to her face near her ear as a result of the punch. She described her attacker as 5’8” tall, with an average build, and white skin. She noted wrinkles around the eyes and bad teeth. She noted no accent in his speech. She also noted a stale tobacco smell.
[137] Ms. C.V. testified before me that she believed she was going to be raped. She indicated that the man did not go after money, the cash register or other valuables in the store, and it seemed like he wanted power over her. In cross-examination, Ms. C.V. confirmed that she learned from police that Mr. Ricciardi had been arrested and charged with other offences. As a result of her discussions with police officers, she believed that he had been targeting women. She also “Googled” him and learned that he had been charged with a number of sexual type offences involving women.
[138] Ms. C.V. was then taken to her initial police statement which was recorded in a police memo book moments after the incident happened. It was pointed out to her that in this statement she indicated that she believed she was going to get “robbed” not “raped”. While she agreed that she signed and initialed the pages of the statement, she maintained that she did not use the word “rob”. She clearly recalled telling the police officer that she believed she was going to be raped and, indeed, recalled noting that the officer did not react when she said “raped”.
[139] Ms. C.V. first noticed that the statement, which was in the officer’s handwriting, used the word “rob” instead of “rape” just before the preliminary inquiry and she brought it to the attention of the Crown Attorney. At the time she gave the initial statement she was both physically and emotionally exhausted and wanted to go home.
[140] The defence called Officer Cathy McMahon, the officer who took the notebook statement from Ms. C.V. on January 26, 2015. Officer McMahon confirmed the accuracy of her notebook entry as an accurate reflection of what was said by Ms. C.V. In particular, the officer noted that Ms. C.V. stated that she did not know if he was going to take cash from the register, what his motive was or whether he would rob her. The written statement was shown to Ms. C.V., who signed it without indicating any inaccuracies. Officer McMahon clearly indicated that had Ms. C.V. used the word “rape” she would have made a notation of it, though she conceded in cross-examination that it is possible that the Ms. C.V. said “rape” and she wrote down “rob”. She also confirmed that Ms. C.V. was visibly upset during the taking of the statement.
[141] Mr. Colin Munch was one of the civilians who came to the assistance of Ms. C.V. and Ms. J.D. on January 26, 2015. On that night, he and three friends were walking on Bloor Street near the F[…] boutique. They heard a woman calling for help outside the boutique and they went over to assist. Mr. Munch entered the store and went to the back of the store where he observed a man crouched down. The man had one knee on the ground. They made eye contact and he observed a knife in the man’s hand.
[142] Mr. Munch went back to the front of the store and exited. He told Ms. J.D. to lock the door so that the man could not exit out the front. She did so, and when the man arrived at the front glass door they could see him knock on the glass and gesture towards the handle.
[143] At the time, Mr. Munch described the man as East Indian, maybe Sri Lankan, with brown coloured skin. He noted that the person was wearing a ski mask and was dressed all in black with a nylon windbreaker type jacket. The knife looked like a kitchen knife. When asked at trial to describe the man he saw, he indicated that the man was in his 40’s or 50’s, 5’8” tall, with quite tanned or dark skin. He noted that the man’s eyes were rheumy, wet, tired and veined.
[144] Ms. J.D., the owner of F[…] boutique testified that she attended at the store at approximately 5:45 p.m. On arrival she went to the back of the store to drop off some dresses and then went to park her car. She then entered the front of the store and observed Ms. C.V. inside the back of the store with a man dressed all in black. She felt uncomfortable. She heard Ms. C.V. scream, and she also screamed in order to let the attacker know she was in the store. She then exited the store and summoned help on Bloor Street. She then entered the store again and a passerby, who as it turns out was Mr. Munch, went into the back of the store and quickly returned telling everyone to get out. At the suggestion of Mr. Munch, she locked the front door of the store. She was screaming because Ms. C.V. was still inside the store with the attacker.
[145] She described the man as wearing a black ski mask made of knit fabric, black clothing, leather runners, and black knit gloves. She described his skin colour as brown, “like East Indian, Middle Eastern”. She described the fabric of the jacket as a fabric “that would make noise”, like a rough material. She estimated his height as 5’6” or 5’8” and his age as mid-50’s. She noted dark circles under his eyes. She did not see anything in his hands.
[146] Police records confirm that Ms. J.D. phoned 911 at 5:49:02 p.m. on January 26, 2015. At 5:51 p.m., Officers McMahon and Rolland arrived on scene. They were flagged down by a group of four or five people and directed into the boutique. At 5:55 p.m., Officer McArthur and Officer Tang attended at the Delaware Avenue entrance of the Ossington Subway Station. At 6:04 p.m., Officer Tang located a pair of black leather gloves on the stairs leading down to the east subway station platform. The scene where the gloves were found was secured and photographed. The gloves were tagged for identification and processing. Photos were filed as part of Exhibit 22.
[147] As well, the police seized a number of security videos. A video seized from the security cameras capturing the scene inside the F[…] boutique was filed as Exhibit 25. In accordance with the agreed statement of fact filed as Exhibit 23, it was admitted that the time on the F[…] boutique security video is five hours and seven minutes earlier than the actual time. The video taken inside the F[…] boutique confirms to a great extent the observations of Ms. C.V., Ms. J.D. and Mr. Munch.
[148] Security videos taken from nearby businesses were also seized, as well as a security video taken from the nearby TTC station. Video excerpts and still images taken from these videos were incorporated into a video and paper chronology filed as Exhibits 24 and 24(a).
[149] Norbert Koot, a senior design engineer with the TTC, was called to give evidence about the accuracy of the time stamps on the TTC security videos seized by police. Mr. Koot explained the system in use at that time and various methods employed to set and maintain accurate times. He indicated that on January 31, 2015, TTC staff noted a time discrepancy on the recording equipment. The time period for the discrepancy was between January 24 and 29, 2015. When examining the discrepancy, Mr. Koot noted that the time was off by up to five minutes plus or minus. He could not state with certainty that the time stamp on the January 24, 2015 video was accurate, noting that it could have been off by one or two minutes and up to five minutes either way, though it also could have been accurate. In his notebook, Officer Tang noted the time 6:04 p.m. as the time when he discovered the gloves on the TTC stairway. He obtained this time from his watch. On the raw TTC video (Exhibit 42) Officer Tang can be seen finding the gloves at approximately 6:04:45 p.m.
[150] The gloves found at the TTC station were submitted for forensic testing. Diane Polley, an expert in DNA analysis with the Centre of Forensic Sciences, testified about the process and results of the testing. Using a blood sample taken under warrant from Mr. Ricciardi on January 17, 2017 (Exhibit 35), a DNA profile was developed. When that profile was compared to the DNA profile obtained from each of the gloves found at the scene, Ms. Polley determined that Mr. Ricciardi could not be excluded as the donor of the DNA in the gloves and that the probability of a random coincidental match was 1 in 9.2 quintillion and 1 in 13 quintillion, for each glove respectively (Exhibit 45(a-c)). Ms. Polley fairly acknowledged that there may be multiple reasons explaining how a person’s DNA could get inside a glove. One explanation would be that the person wore the glove, though wearing a glove would not necessarily result in a DNA transfer. Another explanation might be a DNA transfer whereby the wearer of the glove had someone else’s DNA on their hands and it was transferred into the gloves. This could happen with a handshake or perhaps by grabbing a handrail in a subway. As well, the timing of the deposit of the DNA could not be determined. Therefore, there was no way to say whether the person who left the DNA was the last wearer of the item. Lastly, she could not say whether the DNA in gloves was from a particular bodily fluid or cellular material.
[151] Ms. Polley was not asked to test the outside of the gloves to see if the complainant’s DNA might be present.
Attack on Ms. C.V. – Findings and Analysis
[152] One of the central issues in relation to this incident is the identity of the attacker. There is no direct evidence of identity as none of the witnesses were able to identify Mr. Ricciardi as the attacker. The issue is dependent on circumstantial evidence and, as discussed above, in order to base a conviction on circumstantial evidence, the finding must be the only reasonable inference available.
[153] The identification issue can be broken down into two questions. First, is the person in the F[…] boutique video the same person as the person in the TTC video? If so, is that person Mr. Ricciardi?
[154] Starting with the first question, I find beyond a reasonable doubt that the person in the F[…] boutique video is the same person as the person in the TTC video. It is the only reasonable inference on the evidence. I say so for the following reasons:
a. The man in both videos is dressed identically with two exceptions. In the TTC video, the man is neither wearing a balaclava nor is he wearing gloves. His clothing is all dark and has a distinctive hoodie with very visible white draw strings. While the person in the TTC video is not wearing gloves, I find that he drops the gloves in the location where they were found. Indeed, the video shows the person clearly dropping one glove, and the obvious inference is that the second matching glove found at the scene must also have been dropped.
b. The man in both videos has the same distinctive open foot gait. The walk can be seen on the footage outside and inside the F[…] boutique, as well as in the TTC video.
c. The Delaware Street entrance to the Ossington Subway Station is very close to the F[…] boutique. The man in the F[…] boutique video exits from the back of the store onto a laneway. That laneway leads right to the TTC entrance.
d. The timing of the incident in F[…] boutique, as revealed by the timing of the 911 calls and the arrival of police and the timing of TTC video, is entirely consistent with the attacker’s exit from F[…] boutique and immediate entry into the TTC station. Ms. J.D. called 911 at 5:49 p.m. Police are on scene at 5:51 p.m. The man is seen entering the TTC station at 5:52 p.m. On this issue, I note that while the TTC engineer testified to the possibility of time discrepancy on the video cameras at that location, the consistency of the time - independently noted by Officer Tang, suggests that the time was accurate or at worst off by seconds.
[155] Turning to the second question, I am satisfied that the man depicted in the videos is Mr. Ricciardi. It is the only reasonable inference on the evidence for the following reasons:
a. The man in the F[…] boutique/TTC video can be seen entering the TTC minutes after the attack on Ms. C.V. ended. He drops a pair of leather gloves that are found by police within minutes. The gloves are tested and a DNA sample is obtained. Mr. Ricciardi cannot be excluded as the donor of the DNA in the gloves, and the probability of a random coincidental match is 1 in 9 quintillion and 1 in 13 quintillion for each glove sample respectively. I acknowledge that there are limitations to the inferences that can be drawn from the DNA sample as indicated by Ms. Polley’s testimony. However, it remains a powerful piece of circumstantial evidence and it is not the only piece of evidence supporting an inference of identification.
b. The man in the F[…] boutique/TTC video has a distinctive open foot walk. I compare the walk in these videos with Mr. Ricciardi’s walk in a known sample, Exhibit 13, the security video taken during Mr. Ricciardi’s arrest on July 23, 2014. I conclude that the manner of walking is distinctive and replicated in both videos.
c. The 911 call of J.D. captures certain words said by someone in the boutique. The voice can be clearly heard to say, “hey…she’s screaming”. The voice has a mild accent and an inflexion that is distinctive. When I compare the sound of the voice in the audio recording to a known sample of Mr. Ricciardi’s voice, I hear the same accent and multiple instances of the same inflexion. The known sample is the lengthy police interview conducted by DC Goetz on May 7, 2015. I conclude that the voice heard on the 911 call is Mr. Ricciardi’s. While Ms. J.D. did not attribute the voice to the attacker, I find that the voice is distinctive enough to permit me to conduct the comparison and reach my own conclusion: see: R. v. Gayle, 2005 CarswellOnt 7422 (ONCA), at para. 13 and R. v. Pinch, 2011 ONSC 5484, at para. 70.
d. While difficult to see, the lapel buttons can be briefly seen on the TTC station video. Mr. Ricciardi was arrested on February 12, 2015, days after this incident wearing a similar coat with lapel buttons.
e. The hairline of the person seen entering the TTC station and descending the stairs is similar to Mr. Ricciardi’s hair line as depicted in his arrest photos. Stills of the TTC video depicting the hairline are found at Exhibit 66. Comparison photos include Exhibit 67(a-d).
f. Mr. Ricciardi’s general physical appearance matches that depicted in the videos. When he was arrested on February 12, 2015, he was in possession of black knit balaclava and black leather shoes with laces. These were both described by Ms. C.V. as being worn by her attacker. Ms. C.V. also described her attacker as having wrinkled eyes. Mr. Munch described his eyes as rheumy, veined and tired. These features are readily apparent in Mr. Ricciardi’s arrest photos.
g. The man in the F[…] boutique video can be seen smoking as he walks down the street. Ms. C.V. noted that the attacker smelled of wet cigarettes. The smell was bad enough that Ms. C.V. spayed perfume in the boutique after the attacker’s initial departure. The agreed statement of facts (Exhibit 51) confirms that Mr. Ricciardi is a smoker. His surety, Mr. Michalchuk, confirms that Mr. Ricciardi smoked a pack of cigarettes a day, often wore the same t-shirt every day and the t-shirt smelled dirty.
h. The man in the video can be seen wearing a distinctive hoodie sweatshirt with white draw strings and markings. In Exhibit 77, it is an agreed fact that on May 2, 2016, during the course of the preliminary inquiry, Det. Sedgewick observed Mr. Ricciardi in court wearing a long-sleeved, black hooded sweatshirt with a zipper at the front and a white inlaid seam on either side of the zipper. While there were holes on either side of the hood for a draw string, no draw string was present. A similar sweatshirt can be seen in the photos taken of Mr. Ricciardi’s bedroom during the execution of the search warrant on July 24, 2014: see Photo 279 at Tab 3 of Exhibit 1. A similar hoodie sweatshirt with white draw strings can also be seen on the in-car video taken upon Mr. Ricciardi’s arrest on February 12, 2015 (Exhibit 28).
i. The man in the TTC video is not wearing a balaclava and his face is visible. It bears a strong resemblance to Mr. Ricciardi as he appears before me and in the various arrest photos.
[156] I note that many of the findings listed above would not be sufficient standing on their own to support the conclusion that Mr. Ricciardi is the attacker. That said, when I view all the circumstantial evidence of identity as a whole, I am satisfied that Mr. Ricciardi is the man in the F[…] boutique and TTC videos and is, therefore, Ms. C.V.’s attacker.
[157] In arriving at my conclusion that Mr. Ricciardi is Ms. C.V.’s attacker, I have considered that the descriptions given by Ms. C.V., Ms. J.D. and Mr. Munch, are not consistent. Both Ms. J.D. and Mr. Munch describe the attacker as dark skinned, East Indian or Middle Eastern in appearance. Ms. J.D. notes that the gloves are a knit material. I pause to note that the differences in their descriptions highlight the reasons why identification evidence must be treated with caution. It is clear that all three persons are looking at the same man, yet they each observe different, and at times conflicting, features.
[158] In my view, Ms. C.V. had the best opportunity to observe the attacker. She encountered him twice that day and for some duration. Both Ms. J.D. and Mr. Munch only saw him briefly while the attack was under way and they were trying assess the situation and assist Ms. C.V. The extent of their interaction with the attacker compared with Ms. C.V.’s interaction is evident in reviewing the security video from F[…] boutique.
[159] Given their limited ability to make observations and given the subjective nature of describing a person’s apparent ethnicity, I am not troubled by the fact that the description of the attacker provided by Ms. J.D. and Mr. Munch conflicts with the one given by Ms. C.V. and arguably conflicts with Mr. Ricciardi’s appearance. It does not leave me with a reasonable doubt that Mr. Ricciardi is the person who attacked Ms. C.V.
[160] In reaching this conclusion, I have also considered that in Mr. Ricciardi’s statement to police on May 7, 2015, when asked if he had ever been at the F[…] boutique, Mr. Ricciardi offered a flat denial, though he acknowledged being familiar with Bloor Street. I neither accept his denial on this issue, nor does it leave me with a reasonable doubt. The denial is given in the context of an interview where Mr. Ricciardi is being confronted with a number of allegations. He declines to make a specific comment, as is his right, when confronted with the F[…] boutique allegation. When pressed he adds that he has never been to the location. In my view, this was simply another way of declining to make a statement on the issue. When assessed in the context of the interview and against the back drop of the balance of the circumstantial evidence of identification discussed above, I reject his statement on this issue as untruthful.
[161] In view of my finding on identification, I find Mr. Ricciardi guilty of assault with a weapon (Count 7) and having his face masked with intent to commit the indictable offence of assault with a weapon (Count 8).
[162] In terms of the unlawful confinement, I find that Mr. Ricciardi moved Ms. C.V. to the back of the room where she would be out of sight of passersby or anyone entering the store. Once there, he attacked her by punching her in the face. It is violent. The punch is caught on video. I infer it is a punch intended to disable or knock out a person. She fell to the ground and he crouched over her with his body on top of hers. It is unclear whether his body was in contact with hers, though it is clear that she was holding his hand and he had a knife in his hand. He placed his hand over her mouth and threatened to kill her unless she stopped screaming. From the video it appears that he is on the ground with Ms. C.V. for a fair period of time.
[163] On these facts, I have no hesitation concluding that apart from the assault, Mr. Ricciardi unlawfully confined Ms. C.V. on the floor of the F[…] boutique. The confinement only ended when he was interrupted by Ms. J.D. screaming and the entry of Mr. Munch. The period of time involved is sufficient to meet the test for unlawful confinement.
[164] I therefore find Mr. Ricciardi guilty of unlawful confinement (Count 9).
[165] I turn lastly to the offence of attempt sexual assault with a weapon. I start with some comments on credibility. Ms. C.V. was generally not challenged on her credibility. It appears there was little to challenge as her description of events generally matched what was revealed in the security videos. In any event, I found her to be an honest, straight- forward witness, who presented her evidence in a balanced and forthright manner.
[166] That said, I agree with the defence that there are some concerns about the possibility that her perception of the events as a potential rape as opposed to a potential robbery was tainted by events that occurred after the incident.
[167] I accept the testimony of Officer McMahon, the officer who attended at the scene and took the notebook statement from Ms. C.V., that Ms. C.V. used the word “rob” and not “rape”. I further accept that if the officer had heard “rape” she would have put it in her notebook. There would be no reason for her not to do so given her role as a first responder and investigator.
[168] Accepting Officer McMahon’s evidence, I find that Ms. C.V. used the word “rob” and not “rape” and that the statement was accurately recorded in the officer’s notebook. I have no doubt that by the time of her testimony at the preliminary inquiry and before me, Ms. C.V.’s perception of the event was that she was going to be raped. However, there is a reasonable possibility that her perception was influenced by her subsequent contact with police and her internet searches about Mr. Ricciardi. There is also a reasonable possibility that Ms. C.V. either misspoke given her traumatized state or perhaps her perception of the event developed on its own once the shock and trauma of the incident wore off.
[169] Either way, I am left with a witness who now tells the court that she feared she was going to be raped. Given the circumstances most, if not all of persons in such a scenario, would feel that being raped was a clear possibility. In any event, her perception of the event is merely one factor to be considered. A conviction for sexual assault, and by extension attempt sexual assault, can be obtained even in circumstances where the complainant is subjectively unaware of the violation of his or her sexual integrity: see R. v. Woldemichael, 2011 ONCJ 895 at para. 26.
[170] However, the issue I have to determine is what Mr. Ricciardi’s intent was. If his intent was to commit a sexual assault, then I would have no trouble finding that his conduct amounted to an attempt. And to re-iterate, the intent required for sexual assault is an intent to commit an assault in circumstances where the assault would objectively violate the sexual integrity of the complainant.
[171] On the issue of intent, I have no hesitation concluding that an inference arises that Mr. Ricciardi intended to sexually assault Ms. C.V. The issue is whether it is the only reasonable inference.
[172] I am satisfied that it is. In my view, when viewed cumulatively, the circumstances of this offence support the singular inference that Mr. Ricciardi’s intent was to commit at least a sexual assault. Mr. Ricciardi is seen pacing on the sidewalk outside the F[…] boutique for some period of time. He enters the boutique and engages Ms. C.V. in an obviously pretextual discussion. She humours him and shows him some wedding dresses despite the fact that he is dressed in a balaclava. He leaves the store only to return later that day. When he returns he again uses a pretext to get Ms. C.V. to the back of the store. He then attacks her with a violent punch that knocks her to the ground. He crouches over her prostrated body, with his body on top of hers, while holding a knife to her. He demands silence backed by a threat to slit her throat and kill her. He then instructs her to flip over onto her stomach. The attack is interrupted. At no time does he try to take anything from the store and at no time does he demand money or other valuables from Ms. C.V.
[173] The physical interaction, and particularly the position adopted once Ms. C.V. is on the floor incapacitated, is one of dominance and control. The command to roll over is particularly telling and strongly signals an intent to engage in a sexual act of dominance and control. While his intent may well have extended beyond sexual assault to include other acts of violence, I am satisfied that when viewed in totality, the circumstances support one inference: which is that he intended to commit a sexual assault.
[174] I appreciate that with respect to Counts 4 and 15, I was not satisfied beyond a reasonable doubt that Mr. Ricciardi’s intent was to commit a sexual assault, though in both instances I was satisfied that an intent to commit sexual assault was one possible, perhaps even likely, inference. The distinction is one of degree. In this instance, Mr. Ricciardi’s interaction with the complaint is for a significantly longer period of time. It includes a period of time where he engages the victim in discussions that suggest he is obviously not intending to rob her. The nature of the physical attack, including the proximity of his body over top of hers while she is lying on the ground, and particularly the instruction to flip over onto her stomach, serve as key distinguishing features that confirms the singular availability of the inference of at least an intent to commit a sexual assault.
[175] As a result, I find Mr. Ricciardi guilty of attempt sexual assault (Count 10).
The Craigslist Offences
[176] The offences in relation to the Craigslist ads allege that Mr. Ricciardi attempted to sexually assault (Count 21) and attempted to kidnap (Count 22) female persons. In support of these allegations, the Crown called the viva voce evidence of Ms. E.E. and Ms. T.F. The evidence of a number of other complainants in relation to these two counts was tendered in writing and was comprised of the witnesses’ preliminary inquiry testimony along with related exhibits. This evidence was tendered in a series of witness binders: see Exhibits 78-88. The Crown also filed a series of Craigslist ads linked to the email address “fashion55@hotmail.ca” and called a witness from Rogers who gave evidence relating to cell tower location.
[177] The Craigslist ads purport to be from legitimate businesses in the food, entertainment and fashion industries looking for servers, bartenders, wait staff and models. The ads invite applicants to send a resume along with “full body photos”. Some of the ads seek female companionship, cocaine and GHB. The potential uses of GHB were the subject of an agreed statement of fact which indicates that GHB can be used as a drug to facilitate sexual assaults: see Exhibits 58 and 58(a). One ad seeks individuals with firearms licences for a position with a security company.
[178] In total, there are approximately 80 ads posted all linked to the email address “fasion55@hotmail.ca”, an email address that Mr. Ricciardi admits is his.
[179] Ms. E.E. testified that in 2014, she resided at Mu[…] Street in Toronto. Her postal box number was #[…]. Ms. E.E. indicated that she applied for a number of jobs using Craigslist mainly in the food and beverage industry. She did not know Mr. Ricciardi and indicated that she would never have sent photographs of herself if they were requested.
[180] The notes found in Mr. Ricciardi’s bedroom contain the following notation “E. [redacted] Mu[…] Street. Box #[…]”, followed by a sketch of what appears to be a building with the location of cameras marked on the sketch: see Exhibit 61.
[181] Ms. T.F. testified that in 2014 and 2015 she applied for a number of jobs using Craigslist. She referred to a four page email chain, dated January 5, 2014 to January 13, 2015, that she engaged in with the poster of one of the subject Craigslist ads: see Exhibit 55. The ad in question seeks applications for “Female Club Servers” and a copy of the ad is on page 21 of Exhibit 50. Ms. T.F. replied to the ad providing her resume and pictures: see Exhibit 56. In response to a further email she sent additional photographs. In response, she received an email indicating that the employer was interested in booking an appointment with her and suggesting a date. The email also indicated that the employer wanted to send “are book and procedures” [sic] and requested her address so that it could be sent out to her. Ms. T.F. replied providing her address. A few days later, Ms. T.F. received a follow-up email indicating that a courier had tried to deliver the package but could not get a signature from the front desk staff at the apartment. The author of the email requested a “buzz number” to permit the courier to attend directly at Ms. T.F. apartment.
[182] Wisely, Ms. T.F. declined to provide the “buzz number”. Instead, she replied indicating that the package could be delivered to the front desk on a no signature required basis. The “employer” responded that this would be done, but Ms. T.F. never received a package.
[183] Ms. T.F. also related an incident that happened to her late one night after work in early February 2015. She was walking alone on King Street and out of her peripheral vision she saw a man running at her in full sprint. She broke out into a jog to avoid him but they hit shoulders as they passed each other. The man was in a black parka with a hood and a black toque. She describes his face as “olive” in colour and noted lots of wrinkles on his face. When she met with police, they showed her a photograph of Mr. Ricciardi and advised her that he was being investigated for sexual offences. She did not identify this attacker as Mr. Ricciardi.
[184] Ms. T.F.’s name and address also appear in the handwritten notes seized from Mr. Ricciardi’s bedroom: see Exhibit 61.
[185] Ms. Danielle Fortier, a senior investigator with Rogers Communications, testified about billing records and cell tower information relating to the cellular number used by Mr. Ricciardi. She explained the contents of his phone records as well as the basic rules about cell tower location data. The timing and cell tower data for certain calls offers some circumstantial evidence that Mr. Ricciardi was in the vicinity of the residences of both Ms. T.F. and Ms. E.E., as well as locations on Bloor Street and in Richmond Hill.
[186] Ms. K.R. confirmed that she too had applied for jobs on Craigslist. The details of her correspondence are captured in a series of emails tendered as Exhibit 86(a). The email chain starts in 2013 and continues in 2014 and 2015. In response to the emails, Ms. K.R. sent a number of photographs of herself in a swimsuit. She also provided her address and indicated that she travelled by public transit. Some of the email chain includes emails sent from “fashion55@hotmail.ca” and there is a reference in the email dated January 7, 2015 to a “Johnny Ricci” with a telephone number of 416-721-0662.
[187] In his statement to police on May 7, 2015, Mr. Ricciardi acknowledges that “Johnny Ricci” is an alias he used online. It is also an acknowledged fact that the phone number mentioned is the cell phone used by Mr. Ricciardi.
[188] Ms. V.C. testified that she applied for one of the Craigslist positions linked to Mr. Ricciardi’s email address. She engaged in an email exchange reproduced as Exhibit 80(a). She provided a resume and a photograph of herself. The email exchange reveals that Ms. V.C. scheduled an interview with “J.D.” for February 6, 2015 at 1058 Bloor Street. Ms. V.C. attended at that location expecting to find a restaurant but instead found a real estate office. She attended with her boyfriend who stopped his car on Bartlett Street. She arrived at the location at approximately 12:45 p.m.
[189] Ms. V.C. had further email communications and was provided with a different address. The reply mentioned a parking lot located on Salem Street. Ms. V.C felt that the response was “weird”. Further communications accused Ms. V.C. of missing an interview she had not agreed to, and the final communication was signed by “Joann” who was “taking over” from J.D.. Ms. V.C. eventually abandoned her efforts to pursue this “employment”.
[190] A security video dated February 6, 2015, taken from Audio Video 2001 near the location that Ms. V.C. was sent to, shows a person who resembles Mr. Ricciardi walking along the sidewalk just after 1 p.m. The Crown alleges that this person is Mr. Ricciardi and that his purpose for being there was to encounter Ms. V.C. The video is Exhibit 73.
[191] A number of other complainants, including A.S., A.H., H.S., S.M., K.M., I.P. and M.P., all confirmed that they applied for jobs in response to a Craigslist ad linked to Mr. Ricciardi’s email address. The email chains relating to each of these witnesses contain some similarities; there is generally a request for photographs to be provided; the name on the reply email for the employer is generally “J.D.” or “Joann”; and, there is usually a query into whether the applicant has access to a vehicle. None of these complainants ever met Mr. Ricciardi or anyone else related to the job posting. Several of the witnesses backed out once photographs were requested or when directions to attend an interview seemed suspicious. One witness, Ms. R.S., attended at a location near Mr. Ricciardi’s home in Richmond Hill for an interview. The related email exchange, found at Exhibit 78(a), reveals that she attended at the address stipulated for the interview, but could not find the specified location where the interview was to take place. She waited for an hour but no one showed up. In accordance with further email communications she re-attended, but no one showed up again.
[192] Interestingly, one complainant, Ms. A.K., claims to have responded to one of these ads and indicates that she had a follow up telephone call with female who identified herself as “J.D.”. The woman told Ms. A.K to attend at a certain intersection where she would be met by a man who would direct her to the specific location of the interview. The timing of this conversation arguably overlaps a time period when Mr. Ricciardi was in custody following his arrest on February 12, 2015. That said, the witness could not recall any of the details of the ad and believed it was an ad on “Indeed” and not Craigslist.
Craigslist Ads – Findings and Analysis
[193] I am satisfied beyond a reasonable doubt that Mr. Ricciardi is the person behind the various Craigslist ads tendered into evidence. I am also satisfied beyond a reasonable doubt that he is the person who engaged in email communication with the various complainants.
[194] Mr. Ricciardi admits in his police statement that the “fashion55@hotmail.ca” email address is his. He also admits to using “Johnny Ricci” as an alias and acknowledges the fact that photographs of K.R. are on his computer, as well as resumes of a number of women. The Craigslist ads tendered into evidence are all linked to Mr. Ricciardi’s email address. His phone number and admitted alias are referenced in one of the email exchanges. The nature, content and language of the various ads are also consistent, suggesting they have been posted by one person.
[195] I have a reasonable doubt that Mr. Ricciardi is the person who rushed Ms. T.S. outside her apartment building late one night. While her description matches Mr. Ricciardi in a general sense and his presence in the area is supported by phone records, when viewed in totality I am nothing more than suspicious that it may be him.
[196] With respect to the person seen in the Audio Video 2001 security video, I conclude that it is probably Mr. Ricciardi. The general physical description, manner of dress and distinctive open foot walk, all support the inference that it is him. However, when I consider this evidence in its totality, I can go no further than to say it is probably him. In this regard, I do not rely on the opinion identification evidence of Det. Godber who, as I have mentioned, is in no better a position than I to assess the similarities in Mr. Ricciardi’s facial features.
[197] I am concerned about Mr. Ricciardi’s attempt to obtain GHB. It clearly raises the possibility that he is seeking out the drug for a nefarious purpose. That said, when viewed in the context of the other ads seeking cocaine, I am not satisfied that his purpose in obtaining the GHB was to further a plan to commit sexual assault.
[198] The Crown’s position on these two counts is that when Mr. Ricciardi’s conduct is viewed in context, it is clear that his intention is to lure women for the purpose of kidnapping them and sexually assaulting them. The job ads are obviously false, as Mr. Ricciardi is an unemployed hairdresser. The content of the ads is clearly geared towards younger females and specifically and invariably includes requests for photographs, often specifying that the photographs should be “full body” shots and/or swimsuit shots.
[199] Proof of his intention is also found in the fact that he uses a female alias in order to dispel any concern with the nature of the requests. He also inquires whether the job applicant will be attending the interview by car or by bus. In the Crown’s submission, this is an attempt on Mr. Ricciardi’s part to have access to a vehicle in order to further his intention to kidnap and sexually assault the complainants.
[200] Mr. Ricciardi’s conduct in relation to the Craigslist ads is extremely concerning. It clearly appears that he is engaging in a calculated scheme to entice young women to send him “full body” photographs and perhaps meet him under the false pretense of a job interview.
[201] On the most favourable interpretation of these incidents, Mr. Ricciardi is an “internet troll” using false offers of employment to advance his voyeuristic needs and desires. On the least favourable interpretation, Mr. Ricciardi is taking steps to lure female victims for any number of purposes, including sexual assault and/or other forms of violence. In this regard, even if this was the interpretation I adopted, I would not be sure that the only reasonable inference was that he was intending to commit a sexual assault or a kidnapping.
[202] Both interpretations are reasonably available on this evidence. Either way, a conviction does not follow. I therefore find Mr. Ricciardi not guilty of attempt sexual assault (Count 21) and attempt kidnapping (Count 22).
[203] I should add that if I had found the requisite intent, I would nonetheless have had a reasonable doubt on the basis that the steps taken amount to no more than mere acts of preparation and not an actual attempt. In my view, the act of posting the ads and engaging the complainants in email exchanges, including scheduling interviews, are acts of preparation and not actual attempts to commit an offence.
The Arrest – February 12, 2015
[204] The only remaining offence in relation to Mr. Ricciardi’s arrest is one count of obstruct police (Count 18).
[205] On February 12, 2015, Officers Renwick and Howard as well as other officers were tasked to conduct surveillance at the apartment building located at Baif Boulevard. They were instructed to look for Mr. Ricciardi in order to arrest him and were provided a photograph of Mr. Ricciardi in order to assist with identification.
[206] Officers Renwick and Howard went to the third floor of the apartment and made observations of Unit #312 which they understood was Mr. Ricciardi’s unit. At around 6:50 p.m., they observed a male, who appeared to be in a hurry, exit the apartment and head towards a nearby stairwell. The male matched the same overall appearance as a photograph that had been provided as part of the surveillance plan.
[207] Officer Renwick testified that he caught up to the male on the landing of the second floor. He called out “Antonio” to which the male responded “What?” Officer Renwick then said “Are you Antonio?” The male replied “No, I’m Luciano, Antonio is my brother”. The male further indicated that Antonio was with his “guarantor”. The officer sought clarification and determined that “guarantor” meant “surety”.
[208] Officer Renwick next asked “Who is in the apartment?” The male replied, tellingly, “My mom and my guarantor”. Officer Renwick asked the male if he too was on charges and the male replied “I won’t say anything further”. This version of events was corroborated by Officer Howard.
[209] Initially, Officer Renwick strongly suspected that the male was Antonio Ricciardi, though he wanted to make sure it was him prior to arresting him. Officer Renwick testified that he was “thrown off” when the male said his name was Luciano Ricciardi. The officer used the photo that had been provided to satisfy himself that the male he was dealing with was in fact Antonio Ricciardi.
[210] Officer Howard indicated that he had arrested Mr. Ricciardi on another occasion and knew him. He did not recall seeing a photograph of Mr. Ricciardi on the date of this arrest but recalled Officer Renwick having one. While he agreed that the answers provided by the male were “fishy”, he maintained that he was not certain of the male’s identity. He indicated that if he had been certain, he would have arrested Mr. Ricciardi instantly.
[211] After a brief interaction lasting 10 to 30 seconds, Mr. Ricciardi was placed under arrest by Officer Howard and during the course of the search incident to arrest, Officers located a steak knife concealed in a pocket.
[212] The defence argues in view of the short duration of the interaction, the actus reus of the offence is not made out because there was no obstruction within the meaning of section 129 of the Criminal Code. The Crown argues that Mr. Ricciardi clearly, albeit briefly, obstructed the course of the investigation by falsely identifying himself.
[213] The external circumstances of the offence of Obstruct Peace Officer require an interference with or obstruction of a peace officer engaged in the lawful execution of his or her duties. The mental element requires that the interference or obstruction be wilful.
[214] In this case there is no issue that Officers Renwick and Howard were peace officers engaged in the execution of their duties. This would have been known to Mr. Ricciardi as both officers were readily identifiable as police officers. There is also no issue that Mr. Ricciardi’s answers were a wilful attempt to divert attention away from himself as he was trying to leave the apartment building. The real issue is whether the giving of the false name in response to questions by the police officers resulted in an obstruction of the officers in the execution of their duties.
[215] The focus of section 129 of the Criminal Code is on the result of the accused’s conduct as opposed to simply the conduct itself. For it to be a crime, the accused’s conduct must have the effect of obstructing the officers in the execution of their duties. Obstruction, in this sense, is made out where the conduct makes it more difficult for the police to carry out their duties: see R. v. Tortolano (1975), 1975 1248 (ON CA), 28 C.C.C. (2d) 562 (Ont. C.A.). In Ontario, there is no requirement that the obstruction amount to a “major inconvenience” of the officers. All that is required is that the obstruction extend beyond the de minimis range: see R. v. Khan, [2014] O.J. No. 5437 (Ont. S.C.J.), at para. 71 and 74.
[216] Turning to facts of this case, I am not satisfied beyond a reasonable doubt that the officers were obstructed in the course of their duties. The officers attended at the residence to conduct surveillance and to arrest Mr. Ricciardi. From the moment they saw him until the moment of his arrest, approximately 45 seconds elapsed. Approximately 10 to 30 seconds were spent speaking with him. Both officers testified that they were momentarily thrown off by Mr. Ricciardi’s claim that he was Luciano Ricciardi and not Antonio. That said, the only step taken by Officer Renwick was to look at a photograph that had been provided to confirm that it was indeed Antonio Ricciardi that he was dealing with. Officer Howard did not look at a photograph. While he knew Mr. Ricciardi from having arrested him on an earlier occasion, he was unclear in his evidence as to whether he believed or disbelieved Mr. Ricciardi’s assertion about being Luciano. On the whole, I am left with a reasonable doubt on the impact that Mr. Ricciardi’s lie had on the course of the investigation. Indeed, it appears that apart from a momentary pause to look at a photograph, there was no obstruction of the investigation.
[217] While I find Mr. Ricciardi not guilty of obstruct peace officer, I am satisfied beyond a reasonable doubt that he attempted to obstruct a peace officer by providing a false name and, therefore, pursuant to section 660 of the Criminal Code I find him guilty of attempt to obstruct peace officer. His intent was clearly to divert attention from himself and shield his true identity. He took concrete steps in furtherance of that intent.
The “Count on Count” Similar Act Evidence Application
[218] In support of its position that Mr. Ricciardi is the person responsible for these offences, the Crown seeks the cross admissibility of evidence on the counts in the indictment. The Crown argues that the evidence serves as similar act evidence on the issue of identity, motive, intent and narrative. In particular, the Crown seeks cross admissibility of the evidence in relation to the Craigslist matters in support of the evidence in relation to the attacks on the three victims and vice versa. The Crown argues that Mr. Ricciardi’s motive and purpose, viewed globally, was sexual in nature and that this can be readily determined by looking at the series of offences engaged in by Mr. Ricciardi. The Crown also argues that the three attacks are sufficiently similar as to permit an inference of identity.
[219] As I have concluded that identity has been established beyond a reasonable doubt, I need not consider whether the similar act evidence supports the identity of Mr. Ricciardi as the attacker and perpetrator of the offences.
[220] In relation to the balance of the application, I am not satisfied that the evidence is admissible as similar act evidence. However, I do accept that in assessing the accused’s intent on the various offences, the evidence cannot be completely compartmentalized as between the counts. Indeed there is a broader context that needs to be considered. This context is best exemplified when reviewing the helpful chronology prepared by the Crown in relation to Craigslist Offences found in Counts 21 and 22 and marked as Exhibit “A” in these proceedings.
[221] The chronology details in chart form the timing and nature of the various incidents in this prosecution, starting with the break and enter at the Catenaro residence on July 15, 2014 and ending with Mr. Ricciardi’s second arrest on February 12, 2015.
[222] During this seven month period Mr. Ricciardi engages in the conduct that relates to the offences charged. The chronology reveals a number of key features:
a. The break and enter at the Catenaro residence and the attack on Mrs. S.N. occur within days of each other in July 2014, but some four months before the Craigslist ads start to be posted.
b. Attempts to purchase a firearm online are made on two instances in November and December 2014, after the Catenaro break and enter and the attack on S.N. but concurrent with the start of the Craigslist activity.
c. The attacks on Ms. C.V. and Mrs. G.E. occur towards the end of the seven month period.
d. The Craigslist conduct occurs somewhat continuously from November 2014 until February 2015.
[223] Similar act evidence is presumptively inadmissible. The onus falls on the Crown to demonstrate on a balance of probabilities that in the context of the case being tried, the probative value of the evidence on the issue in question outweighs its prejudicial effect: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55, R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at paras. 42 and 51 and R. v. McCormack, 2009 ONCA 72, at para. 48.
[224] The probative value of the evidence depends on the nexus or degree of similarity between the similar act evidence and the offence the evidence is tendered to prove. That determination depends in large measure on the purpose for which the evidence is being tendered. Where the evidence is being tendered to establish identity, a high degree of similarity is required in order to minimize the likelihood of coincidence. Where, however, the evidence is tendered in support of another issue, such as motive or intent, a differing degree of similarity might suffice. The issue is context and fact specific and remains focussed on the probative value of the proposed evidence versus its potential prejudicial effect.
[225] The inquiry starts with the similarity of the acts themselves. The factors to be addressed in this regard include: the proximity in time and space, the similarity in detail and circumstance, the number of occurrences, any distinctive features, any intervening events and any other factors that tend to support or undermine the unity of the similar acts: see McCormack, supra, at para. 53 and R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at paras. 21 and 22.
[226] The assessment of the potential prejudice of the evidence may be attenuated in cases where the evidence proposed as similar act is “count on count” and where the case is being tried by a judge alone: see McCormack, supra, at para. 56.
[227] I start by comparing the Craigslist offences with the three attacks. In my view, these two groups of offences are not sufficiently similar to give rise to an inference that the intent and motive of the Craigslist conduct is evidence of the intent and motive of the three attacks. There is no suggestion that the three attacks are related to any internet activity or to modelling, the restaurant and hospitality industries. As well, two of the attacks relate to victims who are much older than the complainants involved in the Craigslist ads. The three attacks appear to have a random and opportunistic quality to them in terms of the selection of the intended targets and the nature of the attack. On the other hand, the Craigslist conduct suggests a more detailed, organized scheme, intended to obtain information and photographs from victims and draw them to a specified location for some nefarious purpose. Lastly, none of the Craigslist incidents reveal an encounter between Mr. Ricciardi and the intended target.
[228] I accept that all of the offences suggest an animus or motive by Mr. Ricciardi against women generally. I further accept that the Craigslist ads have a more obvious sexualized context to them, especially given the repeated insistence on the provision of photographs. However, I am not prepared to use that evidence to infer that Mr. Ricciardi’s motive and intent in relation to the three attacks was sexual in nature.
[229] I should add that if the various incidents in the Craigslist counts had been charged as individual counts rather than grouped as they were in Counts 21 and 22, I would have had no hesitation in finding the requisite degree of similarity and therefore probity as between those counts.
[230] While I decline to apply the evidence as similar act as between the counts, and in particular as between the Craigslist offences and the three attacks, I want to make clear that in considering the evidence of motive and intent in relation to each attack and the Craigslist offences, I have assessed the evidence of Mr. Ricciardi’s intent and motive within the context of the evidence as a whole. Given the proximity in time, the evidence that supports inferences as to Mr. Ricciardi’s intent and motive cannot be neatly compartmentalized count by count. Put another way, an assessment of the evidence of intent and motive involves, at a least to a degree, the global consideration of Mr. Ricciardi’s conduct during the time frame of the events.
[231] Some of the general evidence of motive and intent is found in Mr. Ricciardi’s efforts to obtain a firearm. I heard evidence from three witness, Kyle Sawyer, Ryan Craig and Gregory Hicks, relating to interactions they had by email and telephone with a person I am satisfied was Mr. Ricciardi in relation to the purchase of a firearm. Notes relating to the purchase of a firearm were also found in Mr. Ricciardi’s bedroom (Exhibit 61). I am satisfied on the basis of this evidence that Mr. Ricciardi made attempts to obtain a firearm in November and December of 2014, at a point in time concurrent with the commission of these offences, though after the attack on Mrs. S.N. and the break in of the Catenaro residence. While I do not use this evidence to infer that Mr. Ricciardi is the type of person to commit the offences charged, I do rely on this evidence to support the inference that during the time period when Mr. Ricciardi was committing these offences, he was undertaking efforts to get a firearm. This, in turn, supports that inference that he had a nefarious, likely violent purpose in mind. That said, it does not assist me in determining whether that purpose was sexual or merely violent in nature.
[232] Similarly, another note found inside Mr. Ricciardi’s residence reads as follows:
THURS 930 NICOLE
CUFF HER – BEAT HER IN FACE
GO TO TFT (?) MALL
TAKE JEWELRY CELL PHONE
BANK CASH MONEY
[233] While this note is chilling, in my view, it does not support the position that Mr. Ricciardi’s intent was to commit a sexual assault, even assuming it is related to the offences against any of the named complainants. On the contrary, the note seems to suggest a violent robbery and disposal of the proceeds of the robbery more than it does a sexual assault. Again, the note supports a violent intent, but not necessarily a sexual one.
[234] On the whole, I am satisfied that Mr. Ricciardi had motives and intents that were related to a number of acts including sex, violence, robbery, intimidation and dominance. I am further satisfied that these intents and motives were directed at women.
Summary of Findings
[235] To recap my conclusions, I have determined the charges against Mr. Ricciardi as follows:
C[…] Street North
Guilty - Count 1 – Break and Enter of a Dwelling House
The Attack on Mrs. S.N.
Guilty - Count 2 – Attempt Kidnapping – July 19, 2014
Guilty - Count 3 – Robbery – July 19, 2014
Not Guilty - Count 4 – Attempt Sexual Assault with a Weapon – July 19, 2014
Guilty - Count 5 – Carry Concealed Weapon – July 23, 2014
Guilty - Count 6 – Possession of Property Obtained by Crime Under $5,000 – July 23, 2014
The Attack on Ms. C.V.
Guilty - Count 7 – Assault with a Weapon
Guilty - Count 8 – Having Face Masked with Intent to Commit Assault
Guilty - Count 9 – Unlawful Confinement
Guilty - Count 10 – Attempt Sexual Assault with a Weapon
The Attack on Mrs. G.E.
Guilty - Count 11 – Break and Enter a Dwelling House
Guilty - Count 12 – Assault
Guilty - Count 13 – Having Face Masked with Intent to Commit Assault
Not guilty - Count 14 – Unlawful Confinement
Not guilty - Count 15 – Attempt Sexual Assault
Guilty - Count 16 – Criminal Harassment
The Arrest
Guilty - Count 17 – Carry Concealed Weapon
Not Guilty, but guilty of attempt - Count 18 – Obstruct Police
Guilty - Count 19 – Fail to Comply Recognizance – No weapons condition
Guilty - Count 20 – Fail to Comply Recognizance – Residence condition
The Craigslist Offences
Not Guilty - Count 21 – Attempt Sexual Assault
Not Guilty - Count 22 – Attempt kidnapping
[236] I wish to add a postscript about the conduct of this trial. It was conducted in accordance with the finest traditions of the bar. During the course of this trial, Crown and defence counsel respectfully, fairly and fearlessly, advanced and maintained their positions. However, they also filed several agreed statements of fact which eliminated the need for significant amounts of viva voce testimony. As well, a significant portion of the trial evidence was tendered on consent using excerpts from the preliminary inquiry with related exhibits. The issues raised were focussed and very well presented. This was a lengthy and complicated trial that was made significantly more manageable by the competent and responsible conduct of all counsel involved.
[237] I am indebted to counsel for their assistance and commend them for their professionalism.
Justice J. Di Luca
Read Orally: September 15, 2017
Released: September 20, 2017
NOTE: As noted in court, on the record, this written judgment is to be considered the official version and takes precedent over the oral judgment read into the record. If any discrepancies between the oral and written versions, it is the official written judgment that is to be relied upon.
CITATION: R. v. Ricciardi, 2017 ONSC 5562
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANTONIO RICCIARDI
Applicant
REASONS FOR JUDGMENT
Justice J. Di Luca
Read Orally: September 15, 2017
Released: September 20, 2017