Court File and Parties
Court File No.: CR-18-40000315-0000 Date: 2019-05-28 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent
- and - Siu Fung (Nigel) Tsang, Defendant/Applicant
Counsel: Anika Roberts, for the Crown Devin Bains and Pamela Zbarsky, for the Defendant/Applicant
Heard: May 24, 2019, at Toronto, Ontario
Before: Michael G. Quigley J.
Reasons for Ruling
Re: Motion for a Directed Verdict of Acquittal
Introduction
[1] The applicant, Siu Fung Tsang, is charged with the offence of publishing an intimate photograph of the complainant, L.T., without consent, contrary to section 162.1 of the Criminal Code.
[2] Section 651(1) of the Code requires an accused or the accused’s counsel, at the end of the case for the prosecution, to declare whether evidence will be adduced on behalf of the defence. Before making this declaration the accused or the accused’s counsel is entitled to move for a directed verdict of acquittal on the basis that the Crown has failed to establish a case sufficient to go to a jury.
[3] At the conclusion of the Crown's case, Mr. Tsang’s counsel made a motion for a directed verdict of acquittal. I heard submissions from defence counsel and from the Crown. I found that the motion for a directed verdict of acquittal must be granted and provided brief reasons at the conclusion of the hearing with a promise of more fulsome reasons in due course. These are my reasons for that decision.
The Test
[4] Where a motion for a directed verdict of acquittal is brought by the defence at the end of the Crown's case, I am required to rule before the trial continues because the accused is entitled to know my ruling before making a decision whether or not to call evidence in defence. The motion is made at this time because the Crown’s evidence that is said to support the charge beyond a reasonable doubt is now complete.
[5] In United States of America v. Shepard[^1], the Supreme Court established the controlling test. It is the same test that is applied by a preliminary hearing judge in deciding whether to commit an accused for trial. It is:
…whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice” [is] required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.
[6] The decision at the preliminary inquiry is at an earlier stage in the proceedings where the test serves a “gate-keeper” function, unlike at this time after the Crown’s case is complete, where all of the Crown’s evidence has been heard. The test is the same, however, and whether, as Trial Judge, I am sitting with or without a jury, as in this case.
[7] In his text Criminal Procedure[^2], Professor Coughlin observes that the nature of the test means that a directed verdict is not available where the Crown’s evidence is “merely weak”. The preliminary inquiry justice is not entitled to discharge an accused in those circumstances, nor am I entitled to direct an acquittal, even if the Crown’s case has been significantly weakened by evidence at trial.
[8] A directed verdict may only be granted where there is an absence of evidence on some point that must be proven. Put affirmatively, R. v. Charemski[^3] instructs that the Crown must “produce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden.”
[9] A motion for a directed verdict is only to be granted if the Crown has not done so, that is, if the Crown has failed to produce some evidence that addresses each of the elements of the offence and that can reasonably give rise to an inference of guilt. This follows because a lack of evidence relative to one essential element causes the question of the accused’s guilt to become one that can be settled exclusively by legal determination, not by questions of fact. The absence of evidence relative to an essential element of an offence is not a question of fact. It is a question of law.
[10] The same is true here where the Crown’s case rests on circumstantial evidence. If the evidence said to support an element of an offence is entirely circumstantial, then the inference said to establish that element beyond a reasonable doubt must be the only reasonable inference that is raised by the circumstantial evidence. However, I am required to assume that the operative inferences that may arise from the circumstantial evidence are those that favour the Crown, at least at this mid-trial stage on a motion whether or not to grant a directed verdict.[^4]
[11] In R. v. Arcuri[^5], the Supreme Court was concerned with circumstances where the evidence on one element of the offence was entirely circumstantial, as is the case with the actus reus element in this case. In such a case, the Supreme Court instructed that the Justice should undertake a limited weighing of the evidence, including defence evidence if there is any, in order to determine whether a reasonable trier of fact could return a finding of guilt.
[12] That requires the judge to consider whether the circumstantial evidence, if believed, could support the inference that is sought in favour of the prosecution, and whether the trier could consider it to be reliable or credible. If so, then the accused is to be committed for trial. If not, he is not. In the context of this motion for a directed verdict, if so, then the question must proceed to the end of the trial and be considered by me as the trier of fact. If not, the application for a directed verdict of acquittal must be granted.
[13] It is an exercise of determining whether the evidence, such as it is, if believed, could support the inferences sought by the Crown in favour of the charge and leave a reasonable jury in a position where they could, properly instructed, convict the accused of the offence charged. Stated another way, the judge is to decide whether “if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt” from that evidence: see Arcuri, above, at para. 30.
[14] Another useful and simple explanation of the rule in Arcuri as it has been interpreted by the Court of Appeal in this Province is provided by Doherty J.A. in R. v. Jackson[^6], in paragraphs 6-8, as follows:
6 Fifteen years ago in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.), McLachlin C.J. described the test to be applied by a preliminary inquiry judge in deciding whether to commit for trial pursuant to s. 548(1) as “well-settled”. A preliminary inquiry judge must decide whether a properly instructed jury, acting reasonably, could convict on the evidence adduced at the preliminary inquiry. If the evidence relied on by the Crown is circumstantial, the preliminary inquiry judge must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence: Arcuri, at paras. 1, 29-30.
7 In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 (S.C.C.), at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont. S.C.J.) [2008 CarswellOnt 1144 (Ont. S.C.J.)], at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370 (B.C. C.A.), at paras. 13-14.
8 If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.
The elements of the offence
[15] Turning to the elements of the offence in this case, in order for Mr. Tsang to be found guilty of this charge, Crown counsel must prove four essential elements beyond a reasonable doubt.
[16] In the particular factual circumstances of this case, the Crown must prove: (i) that Mr. Tsang knowingly published or transmitted an image of L.T.; (ii) that the image was an intimate image; (iii) that L.T. did not give her consent to that conduct; and (iv) that Mr. Tsang knew that L.T. had not given her consent to the publication of the intimate image or was reckless as to whether she had given her consent.
[17] Looking at the second element first, there is no issue that the images that are alleged to have been published online by Mr. Tsang are intimate images as defined in subsection 162.1(2) of the Code. Neither, at least on this application, are either the third or fourth elements in play.
[18] Rather, it is the first element that is the entire focus of this application. The first element requires the Crown to have proffered some evidence, direct or circumstantial, that the applicant engaged in the conduct that is the actus reus of the offence, namely that he published an intimate image of L.T. The evidence, whether direct or circumstantial, must be of a quality that if believed, could cause a trier of fact, properly instructed in the law, to reasonably be satisfied beyond a reasonable doubt that the applicant alone published an intimate image of L.T.
[19] I am reminded for the purposes of this question that my rulings under s. 8 and 24(2) of the Charter and my dismissal of the Crown’s voluntariness application relative to statements allegedly made by the accused, limits the available evidence of the actus reus to certain statements made by the complainant, and the drawing of inferences from that evidence. There is no direct evidence that establishes to any standard that the applicant posted intimate images of the complainant online.
Analysis
[20] The position of the defence on this application in support of the directed verdict sought by the applicant is that the Crown has failed to adduce evidence that could establish the actus reus of the offence, and he advances a number of reasons to support his position that the Crown has failed to produce evidence that the applicant published, distributed, transmitted, sold, made available, or advertised an image of the complainant:
(i) That there is no evidence as to what date the images of the complainant were first posted online, or where (to what website or location) the images of the complainant were first posted online;
(ii) That the website, Anon-ib, containing the images of the complainant that the applicant is alleged to have posted, is an anonymous website and has provided no information regarding the identity of the poster of any of the images of the complainant;
(iii) That the Crown has adduced no evidence that the applicant:
(a) Possessed the images prior to the images being posted on the website (or internet);
(b) Had an account or visited the Anon-ib site; and
(c) Uploaded any images of the complainant to any website at any time.
(iv) That, as a result, there is no direct evidence that the applicant published, an image of the complainant;
(v) That, since the question falls entirely to be determined by circumstantial evidence, I should undertake a limited weighing of the evidence in order to determine whether a reasonable trier of fact could return a finding of guilt;
(vi) That, at the conclusion of the complainant’s evidence, there is a complete lack of clarity as to what images she sent only to the applicant;
(vii) The evidence of the complainant that she sent the applicant images of herself (and for some of the images, that she sent them only to the applicant) at some time during their relationship, does not reasonably lead to an inference that it was the applicant who posted the images;
(viii) That the complainant acknowledged in her testimony that she had no information as to how the images got uploaded and by whom; and
(ix) That, therefore, a finding that the applicant posted the images alleged would be one based only on speculation, assumption or intuition, and not on cogent and reliable evidence (thus creating an inferential gap).
[21] Crown counsel acknowledges that there is an absence of any direct evidence on the first element of the offence, and thus agrees that the only issue on this application is whether the circumstantial evidence could, if believed, cause a trier of fact properly instructed in the law, to reasonably be satisfied beyond a reasonable doubt that the applicant alone published an intimate image of L.T.
[22] In her submission the actus reus is established. There are two pieces of evidence, which are claimed to permit this conclusion to reasonably be reached. The first is the testimony of the complainant, L.T., that three of the images ultimately found on the internet were sent exclusively to the accused. While I find there to be certain problems with the reliability of aspects of the complainant’s evidence, I acknowledge that they are irrelevant on this motion. The assumption on this application must be that I assume L.T.’s evidence to be true and reliable.
[23] The second piece of evidence is the uncontroverted fact that those images, and other intimate and more sexually explicit images of her, are found on the Internet. Crown counsel contends that the earliest posting would have been after the complainant sent the three images to the applicant, sometime between August of 2014 and the winter of 2014-2015. Her testimony was that she sent the first photo in August of 2014 while on a trip to Korea for reconstructive plastic surgery. In the Crown’s submission, the only reasonable inference is that the Applicant was the poster of the images based on the alleged exclusivity of the images to the accused and their presence on the internet.
[24] Stated succinctly as a proposition of logic, the Crown’s position is: (i) that the images are on the internet, (ii) that the complainant testified that she gave the images only to the applicant, and, therefore, (iii) he must and could have been the only person who posted those images. Crown counsel references Jackson at para. 11 as supportive of her position:
11 The Chief Justice makes it clear that evidence at the preliminary inquiry that is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, requires that the accused be committed for trial. The Superior Court judge in this case indicated otherwise at various points in her analysis (see e.g. paras. 20, 25, 26). The Superior Court judge confused cases in which the circumstantial evidence read at its strongest for the Crown could not reasonably support an inference of guilt (see e.g. United States v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.)), with cases in which the evidence could reasonably support inferences necessary to a finding of guilt or inferences inconsistent with guilt: (see e.g. Russell). The preliminary inquiry judge must discharge if the evidence falls into the first category of cases, but must commit for trial if the evidence falls into the second category.
[25] However, in my view, this passage does not assist the Crown. I accept that the trier of fact can reasonably infer that the applicant had possession of the three images. I also accept that it can be safely inferred that someone uploaded those images to the Internet, but that, in my view, does not eliminate the evidential gap that I find to be present. That evidential gap cannot be filled by reasonable inference from the available circumstantial evidence and facts.
[26] I accept that one can speculate from those available facts or use one’s intuition to lead to the conclusion that since the applicant can be inferred to have possessed the images, he must or might have been the poster, but that use of intuition or speculation can never be a substitute for evidence.
[27] An example of the kind of inferential gap that I find to be present here, and that prevents an inference of the applicant’s conduct from being reasonably capable of being drawn here, can be seen in the absence of linkage that Doherty J.A. refers to in United States of America v. Huynh[^7], one of the cases referenced in his reasons in Jackson.
[28] Huynh involved an appeal of the committal for extradition of an individual on charges of conspiracy and money laundering relating to the designated offence of trafficking in a controlled substance. The material relied on in support of the extradition justified the inference that the appellant had conspired with others to covertly transfer very large amounts of cash from the United States to Canada by concealing the money in a secret compartment fashioned in the gas tank of his vehicle. There was no direct evidence as to the source of the cash. The Crown argued that it could be reasonably inferred that the cash was the proceeds of trafficking in a controlled substance based on: (a) the amount of cash involved; (b) the frequency with which cash was being transferred from the United States to Canada; (c) the manner of concealment of the cash suggesting a level of sophistication and a commercial operation; (d) the coded conversations of participants and their obvious concerns about surveillance; and (e) the anticipated evidence of a DEA officer that the modus operandi was consistent with the activities of drug dealers.
[29] The Court rejected the Crown’s contention. While allowing that the material identified permitted the inference that the cash was the proceeds of some illicit activity, one of which might have been drug trafficking, there was no evidence to bridge the gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance. The United States had not offered any evidence as to the source of the funds. As such, he concluded that there was nothing in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity.
[30] In the result, and applying the same reasoning, I find that the Crown has failed to produce evidence that the applicant committed the actus reus of the offence and as such, the application brought by the defendant for a directed verdict of acquittal will be granted. I rely on the facts and the evidence, such as it is. I rely as well on R. v. Arcuri, and equally on R. v. Huynh and R. v. Jackson in reaching this conclusion.
[31] In summary, and as Arcuri makes clear, the question of whether a directed verdict of acquittal can be granted or the defence should instead be called upon to give evidence and the trial continue depends upon whether there is admissible evidence, which could, if believed, result in a conviction. The test is the same whether the evidence is direct or circumstantial, but where the Crown does not present direct evidence relative to the actus reus of the offence, as in this case, the question becomes whether that element may reasonably be inferred from the circumstantial evidence that has been proffered. In answering that question I am required to engage in limited weighing of that and other evidence, because there is by definition an “inferential gap” between the evidence and the conclusion sought. This requires that I ask whether the evidence presented is reasonably capable of supporting the inference that the Crown will ask me to draw as the trier of fact. I must only ask myself whether the evidence, if believed, could reasonably support an inference that the applicant posted the images online. I am not to consider the inherent reliability of the circumstantial evidence, but simply assess the reasonable inferences capable of being drawn from that evidence, such as it is.
[32] At para. 7 of Huynh, Doherty J.A. directly addresses the basis upon which inferences can be drawn and makes the point that there is no substitute for evidence:
The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither [is] a substitute for evidence.
[33] Here, while the images may have been sent only to him, according to L.T., there is no evidence that the applicant was the only person who possessed the images. Nor is there any evidence that the applicant was the only person who could have done the initial posting of the images, and as D.C. Heroux made clear in his testimony, once something is posted to the internet it is uncontrollable and could have been reposted by anyone. He was equally clear that he found no evidence that would permit one to reach the conclusion that the applicant was the original poster.
[34] In my view, even taking it at its highest that the evidence of the complainant is believed that there are three images that she gave only to the applicant, the mere fact that the images came to be present on the Internet does not either reasonably support an inference that the applicant posted them there, or indeed any inference, nor in my view would it be reasonable for a trier of fact properly instructed to infer guilt from those two facts alone. There is an informational gap, which has not and cannot be bridged.
[35] While it is unnecessary for me to say so, in the event that I have erred in granting a directed verdict of acquittal at this time, I would add that having heard the entirety of the Crown’s case, I have not been persuaded of the guilt of the accused beyond a reasonable doubt on the basis of the admissible evidence.
[36] A directed verdict of acquittal will be entered.
Court File No.: CR-18-40000315-0000 Date: 2019-05-28 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent
- and - Siu Fung (Nigel) Tsang, Applicant
Reasons for Ruling Re: Motion for a Directed Verdict of Acquittal
Michael G. Quigley J.
Released: May 28, 2019
[^1]: [1977] 2 S.C.R.167. [^2]: Coughlin, P.D., Criminal Procedure, (Irwin Law: Toronto, 2008) at page 320. [^3]: [1988] 1 S.C.R. 679 at para. 3 [^4]: See R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154; R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, and Charemski, above. [^5]: 2001 SCC 54, [2001] 2 S.C.R. 828. [^6]: 2016 ONCA 736, [2016] O.J. No. 6777 (C.A.). [^7]: 2005 CanLII 34563 (ON CA), [2005] O.J. No. 4074 (C.A.). See also the discussion of Ducharme J. in R. v. Munoz, 2006 CanLII 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.), 205 C.C.C. (3d) 70.at paragraphs 23-31.