Court File and Parties

Court File No.: 68/17 Date: 2018/11/06 Superior Court of Justice - Ontario

Re: R. v. Randy Ellis

Before: Ellies J.

Counsel: Colin McMorrow, for the Crown (Appellant) Michael Venturi, for the Accused (Respondent)

Heard: November 1, 2018

Endorsement

[1] In this appeal, the Crown submits that the trial judge erred in law by failing to conclude that the recording of the complainant was made for a sexual purpose. The Crown points to a number of parts of the evidence that it contends should have led the trial judge to convict the accused. This includes evidence:

(1) that prior to making the recording, the accused had engaged in persistent and unwanted sexualized conversations with the young complainant;

(2) that the accused knew that the complainant intended to enter the washroom immediately after he finished using it and allegedly setting up the camera to record;

(3) that the accused offered numerous differing reasons to the police in his statements as to why he would have a video camera in the bathroom; and

(4) from the video that allegedly shows the accused carefully placing the camera in an apparent contradiction to the description he gave to the police in which he indicated that he placed it nonchalantly.

[2] The Crown contends that the trial judge’s conclusions fail “to give legal effect to the facts as he found them”. I am unable to agree.

[3] I do agree with the Crown that the trial judge misapprehended the evidence about the sexualized conversations. He held, at p. 18:

The evidence presented on this point is non-specific. No specific details are provided as to where, when or exactly what was being said.

[4] As the Crown points out, there was some specificity to the evidence (Crown factum, at para. 10). However, in order to justify appellate intervention, the misapprehension must be material to the outcome: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Sinclair, 2001 SCC 63, [2001] 3 S.C.R. 3, at para. 56. I am not persuaded that the trial judge’s misapprehension affected his reasoning process.

[5] In my view, the Crown has misunderstood the basis for the accused’s acquittal. While it is true that, early in his reasons, the trial judge reviewed the law with respect to whether something has been recorded “for a sexual purpose”, the trial judge did not acquit the accused on the basis that his purpose in recording the video was not sexual. Rather, the trial judge acquitted the accused on the basis that he did not intend to make a recording at all. This is clear from his reasons where he says, just before announcing his decision, at p. 19:

Defence counsel specifically argues the defence of accident in stating that his client did not have the appropriate mens rea to warrant a conviction on these charges. He argues that the recording of [the complainant] was accidentally made as his client’s intentions were to catch anyone doing or stealing drugs and his client believed that he had turned off the camera before entering the washroom to take a shower.

[6] It is clear from this excerpt and from the balance of the trial judge’s reasons that he acquitted the accused because he was not satisfied beyond a reasonable doubt that the accused had intended to make any recording of the complainant, not because he had a reasonable doubt that the accused intended to record the complainant for some other purpose.

[7] The trial judge’s reasons make it clear that the complainant’s evidence about sexualized conversations did not form part of his reasons for having a reasonable doubt about whether the accused intended to make a recording, as opposed to the purpose of the recording. After stating that the complainant’s evidence lacked specificity, he stated, at p. 18:

One must also remember that despite the sexual conversations happening and after Mr. Ellis was clearly caught privately filming [the complainant] in the washroom the family relationship resumed. Mr. Ellis went on at least two family trips after the finding of the video camera and before the charges were laid. So any sexual conversations that might have happened with the accused are in my view only remotely connected, if at all, and accordingly same is not a factor to determining the issues at bar.

[8] The Crown also argues that the trial judge was wrong to rely on the fact that the complainant and her family continued to spend time with the accused. The Crown alleges that victims of sexual crimes should not be expected to act in a certain way.

[9] Again, I agree. However, I interpret the trial judge’s reasons differently. As I interpret his reasons, the trial judge was suggesting that the behaviour of the complainant and her family was inconsistent with the complainant’s evidence about the sexualized nature of the conversations in question. In any event, the trial judge’s reasons make it clear that he did not rely on the post-offence conduct of the complainant and her family in his decision. If anything, he might have found the post-offence conduct of the accused in this respect to be more relevant, although whether he relied on it in that respect is not clear.

[10] The Crown also submits that the trial judge improperly concluded that the accused was not aware that the complainant was going to use the bathroom. I do not believe that the trial judge made such a finding. In his reasons, the trial judge first summarized the evidence, including that of the investigating officer, who interviewed the accused. At p. 11, the trial judge stated:

The video that was retrieved from the camera was once again partially played. The portion that was played clearly shows the accused in the washroom setting up the camera … the constable confirms that there was no knocking at the door by anyone at that time. He did agree that during [the complainant’s] interview that she had mentioned that she had knocked on the door while he was in the washroom. He agreed with defence counsel that she was obviously wrong with that statement as the video did not confirm her version of the events.

[11] As the Crown correctly points out, it was quite possible that the complainant knocked on the bathroom door before the video recording began. However, the comments that I have set out immediately above were contained in the part of the judge’s reasons in which he recounted the evidence that he heard, not in the part of his reasons in which he analysed that evidence. There is no indication that the cross-examination of the investigating officer played a role in the reasons of the trial judge for acquitting the accused.

[12] What is clear from the reasons is the fact that the trial judge relied on three principle areas of the evidence.

[13] The first was the appellant’s video-recorded statements to the police. In the videos, the appellant told the police that he had intended to turn the camera off before the complainant entered into the bathroom and that he thought he had done so. As the Crown concedes, the trial judge was entitled to rely on the accused’s statements, introduced by the Crown, as both inculpatory and exculpatory evidence.

[14] Contrary to the Crown’s submissions, the trial judge’s reasons demonstrate that he was alive to the contradictory explanations the appellant gave to the police in those statements. At p. 17 of this reasons, he stated:

In reviewing the two statements provided by the accused … there are clearly some inconsistencies. These inconsistencies relate to who exactly he was trying to catch stealing his drugs. They also relate to what had been stolen from him in the past and more particularly where these items were stolen from.

[15] The reasons also demonstrate that the trial judge was left with a reasonable doubt about the accused’s intentions notwithstanding these inconsistencies. After properly reminding himself that the accused had not testified and, therefore, his statements to the police had not been the subject of the cross-examination, the trial judge stated, at p. 19:

The two statements were also provided months apart with the basic elements, in my view, remaining consistent. In reviewing the totality of the evidence it cannot be said [that the accused’s explanation of accident] is mere speculation or conjecture. This explanation is not hypothetical, imaginary or frivolous.

[16] The Crown suggests that the video shows the accused carefully placing and turning the camera on. I have watched this portion of the video several times and I agree with the trial judge that this interpretation is but one of two that could reasonably be made. The other is that the accused was attempting to turn the camera off. I do not share the Crown’s view that the video precludes this as a reasonable possibility.

[17] The second area of evidence that the trial judge appears to have relied on are text messages that the applicant sent to the complainant’s family after he discovered that the camera had been taken (by the complainant, as it turned out). The Crown does not argue that the trial judge was wrong to rely on them or that they were incapable of supporting the conclusions he reached with respect to them, which he set out at p. 17 of his reasons:

What is clear from both statements and the text messages is that Randy Ellis did set up the camera in the washroom. This does not seem to be contested by anyone. What also seems very clear from reviewing the statement[s] and the text messages is that his intention was always to try to catch family members from either stealing or using drugs in his residence.

[18] The final area of the evidence relied upon by the trial judge was also something shown in the video. Just after handling the camera, the accused is shown urinating into the toilet. This factored significantly into the trial judge’s reasons, who asked himself rhetorically at p. 18:

Why would someone urinate in the toilet in a very close proximity to a camera unless he had the belief that same was not recording[?]

[19] The Crown argues that the trial judge put too much weight on this evidence. It suggests that the act of the accused in urinating on camera is not inconsistent with him knowing that the camera was on. The Crown submits that the accused would have no reason not to urinate on camera if he thought that he was the only one that was going to watch the video. Again, I agree that is one reasonable inference. However, the fact that he thought the camera was off is another. Given the trial judge’s reference to other areas of the evidence that lead him to having a reasonable doubt, I cannot agree that the trial judge put too much weight on this evidence, regardless of whether it was capable of supporting that weight.

[20] It must be remembered that a trial judge’s factual findings and the inferences he draws from those factual findings must be given deference. A summary conviction appeal court is only permitted to interfere with a trial judge’s finding if the finding is unreasonable or unsupported by the evidence: R. v. Smits, 2012 ONCA 524, at para. 67; R. v. Grosse (1996), 29 O.R. (3d) 785 (C.A.). The question in this appeal is not whether the trial judge should have acquitted, but whether he could have.

[21] The answer to that question is “yes”. Therefore, the appeal is dismissed.

Ellies J. Date: November 6, 2018