ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-19-000000-00AP
DATE: 20210511
BETWEEN:
HER MAJESTY THE QUEEN
Appellant/
Respondent on Cross Appeal
– and –
FATHI RASHID
Respondent/
Appellant on Cross Appeal
Aaron Del Rizzo, for the Crown
Tania Bariteau and Laura Remigio, for the Respondent
HEARD: March 11, 2021
justice s. nakatsuru
[1] In 2015, Fathi Rashid was charged with numerous sexual offences. Allegedly he sexually assaulted and harassed five young teenage girls. The key issue at trial was identity. Along with the evidence of the complainants, the Crown relied upon similar fact evidence, police surveillance, banking records and security video, and Facebook documents. Mr. Rashid did not testify.
[2] Of the four counts of sexual assault, three counts of criminal harassment, four counts of sexual interference and two counts of invitation to sexual touching, Mr. Rashid was convicted of two counts of sexual assault against the complainants, E.W. and L.J. Several counts were conditionally stayed based on the rule against multiple convictions. He was acquitted of the remaining counts.
[3] The Crown appeals Mr. Rashid’s acquittals. Mr. Rashid cross-appeals his two convictions and the sentence of 18 months in custody.
[4] For the following reasons, both appeals are dismissed.
[5] In the factual background, I will set out the evidence of each complainant grouped according to whether the trial judge applied the similar fact doctrine to them or not. I will then deal with the Crown appeal. After, Mr. Rashid’s.
A. FACTUAL BACKGROUND
1. The Complainants Regarding Whom the Similar Fact Application Was Allowed
a. The Similar Fact Witness S.H.
[6] The Crown withdrew charges relating to S.H. at the beginning of the trial. However, the Crown called S.H. as a similar fact witness.
[7] At about 9:15 a.m., on April 1, 2015, 14-year old S.H. was walking to Hollycrest Middle School. A man approached her and asked her directions to Michael Power High School and Briarcrest Junior School. She told him. The man walked along with her and began asking if she knew certain persons who may have gone to school with her. He asked about her friends, Victoria, Kiera, Zoey, and Kristin. The man kept asking her about her bra size and if he could see it. She refused.
[8] As they got nearer to her school, he pulled out some cash and asked S.H. to guess the amount. The man then asked her if she would go into the bushes and show him her bra tag. S.H. refused. He grabbed her by the arm and tried to pull her towards the bushes. She broke free and ran to her school. The man followed and gave her a hug before she went inside. The incident lasted a few minutes.
[9] S.H. had never seen this man before. She described the man as black, curly hair, wearing sunglasses, black jeans and a hat like a baseball cap but with a flat brim. She also testified that she saw the man about a week after the incident standing near the apartment where she lived. This male asked her if she was Shelby.
[10] S.H. gave a statement to the police a few hours after the encounter. On October 28, 2015, she selected Mr. Rashid from a police photo line-up.
[11] The Crown also lead the following evidence. S.H. testified that she received a Facebook friend request from a “Gavin D Sweetie”. Though she initially thought this Gavin was a classmate of hers, she later realized it was not. She did not accept. There was talk around school about who this “Gavin D Sweetie” was.
b. The Complainant E.W.: Found Guilty of Sexual Assault
[12] On May 25, 2015, at about 4 to 4:30 p.m., 14-year old E.W. was walking home alone from Hollycrest Middle School. A man walking in the opposite direction came up and asked her for directions to Michael Power High School. This high school is across the street from Hollycrest.
[13] The man then asked about some of her friends using the names Kristin, Shelby, Haley, Joanna. He asked whether they had any sexual experiences and whether E.W. thought they went far enough. The man groped her twice by grabbing her arm. She pulled her arm free. Then he reached behind her and grabbed her buttocks two or three times. E.W. said she needed to leave. She left feeling very uncomfortable.
[14] E.W. described the man as dark skinned, about 5’5”, wearing a hat, big aviator style sunglasses that took up most of his face, jeans, and was between 19 and 25 years old. She described the hat as being similar to a baseball cap but with a straight or flat brim. She did not describe any accent. She had never seen this man before. E.W. testified that the man drove a white four-door car, standard sized, that looked like a Honda or a Toyota.
[15] E.W. testified that she saw the man again a week or two later at a Tim Horton’s across from her school. She recognized him and his car.
[16] E.W. reported this incident to the police on June 3, 2015, and was subsequently shown a photo lineup but did not pick out anyone.
[17] E.W. recalled speaking to L.D., one of the other complainants, within a few days of the incident. She also spoke about it to S.H. and another friend. She and her friends continued to discuss the incident and they believed they had all encountered the same person.
[18] E.W. testified that she also received a Facebook friend request from a “Gavin D Sweetie” and that a few of her friends also received a similar request. She did not accept it. Some of the letters in the request had weird characters rather than traditional English letters.
c. The Complainant L.D.: Acquitted of Criminal Harassment
[19] On October 27, 2015, 14-year old L.D. was approached by a man driving a car around 4 p.m. as she was walking home from a friend’s house. The man asked for directions to Michael Power High School. He then asked for directions to Hollycrest Middle School. Since the man looked confused, L.D. moved closer to again explain the directions.
[20] The man asked her about people she might know and things she might do. She was asked about Kristin, Jolene, Victoria, and Alexandra. He suggested that they got into cars and gave blowjobs. He wanted to know if L.D. was the type of girl who would do the same. L.D. felt uncomfortable, said she had to go home, and walked away from the car. As L.D. walked away, another car with plainclothes police officers stopped her. She told them what happened. The police had been doing surveillance that day and had seen L.D.’s interaction with this man.
[21] Mr. Rashid was stopped in his car by the police a few blocks away and arrested. Mr. Rashid was driving a blue Mazda with an 11-month old baby in a bucket-style baby seat in the rear of his car.
[22] L.D. described the man as being in his mid-20’s, dark skin, dark sunglasses, curly hair, and a little goatee. The man drove a four-door blue car. L.D. believed there was a bucket-style baby seat in the rear seat on the driver’s side that had a blanket in it.
[23] L.D. was friends with E.W. and they discussed the incidents that happened to them and the looks and age of the perpetrator. L.D. initially told the police that as a result of her discussions with E.W. she did not believe it was the same man.
2. The Complainants Regarding Whom the Similar Fact Rule Did Not Apply
a. The Complainant L.J.: Found Guilty of Sexual Assault
[24] In September 2015, 14-year old L.J. was on her way home from school in the area of Keele and Eglinton when she was approached from behind by a man on foot asking her for directions to a Bank of Montreal. L.J. said she did not know. The man started asking her questions about where she went to school, what she had done with guys, and what she was willing to do with guys. L.J. who had been waiting for a bus, decided to walk home. The man walked with her. He asked her to guess his age and offered her $1,000 if she guessed correctly. They walked past where the man had parked his car. The man pulled L.J. into his car and drove to the Bank of Montreal at Keele and Rogers Road. The man parked at the strip mall and left L.J. waiting in the car. When he returned, the man drove to the parking lot of George Harvey High School. He had money in an envelope and started to count it. He asked L.J. to guess how much there was. After parking, the man reclined his seat, undid his trousers, and pulled out his penis. He grabbed L.J.’s hand and made her hold his penis.
[25] L.J.’s boyfriend called. She demanded to leave the car, or she was going to call the police. The man opened her door and she got out. The man drove away. L.J. called the police from the parking lot.
[26] L.J. described the man as dark skinned with stubble, about 5’7”, wearing a burgundy t-shirt, black pants, about 24-25 years old, possibly Eritrean or Somalian and had brown eyes. L.J. was shown a police photo line-up. She picked out Mr. Rashid.
b. The Complainant F.K.: Acquitted
[27] In 2015, 15-year old F.K. had an online relationship for about one year with someone she knew as “Gavin D Sweetie”. F.K. did not know him before she accepted a friend request from him on Facebook. He told her that his first name was Malik. F.K. never saw a photograph of his face or knew what he looked like during her contact with him.
[28] On July 13, 2015, F.K. met Gavin in person for the first time. They had arranged to meet at the mosque where she had gone to pray with her family at sundown for Ramadan. She and Gavin were texting each other and they met behind some school buses. F.K. knew it was him because he called her over. He was driving a white sports car, four-door, with tinted windows and a baby seat in the rear. They hugged, kissed, and drove a short distance away for privacy.
[29] Once there, F.K. and the man went for a walk. They were kissing. The man removed her hijab, used it to tie her hands behind her back, lifted her shirt and started to kiss her breasts. She told him to stop and he did. They laid on the grass for a while. When she tried to get up, the man would not let her and forced her onto her knees to perform fellatio. He then forced her to the grass, climbed on top of her, slapped her about the face and chest, and choked her. He rubbed her private area hard though she repeatedly told him to stop.
[30] They returned to the car and drove back to the mosque. F.K.’s brother was there looking for her. The man told her brother that he had not seen her although F.K. was sleeping in the car. The man eventually dropped F.K off at her mom’s place in the early morning hours. F.K. eventually disclosed to her parents what happened, and they went to the police.
[31] F.K. described Gavin as dark, early 20’s, thin build, a few inches taller than her height of 5’5”, short stubble beard, and brown eyes. In her videotaped statement to the police on September 28, 2015, she said he had a shaved head.
[32] F.K. did not pick out Mr. Rashid or anyone else in a police photo lineup. She agreed that she had twice seen a news report involving the arrest of Mr. Rashid that included his photo but said she independently recognized the person in the photo in the news.
[33] F.K. testified that Gavin had three Facebook accounts. She identified one Facebook profile as Gavin’s. In addition, they would communicate through texting, Snapchat, and Instagram. F.K. also testified that Gavin would phone her, but it was from a private number that she could not see. However, on one occasion she received a call that rang only once with the number displayed. Very shortly afterwards, Gavin telephoned her from a private number. F.K. suspected that the previous call was from him. She saved that number and provided it to the police. Police investigation revealed it was the same number that was on bank account information for Mr. Rashid.
B. THE CROWN APPEAL
1. The Admission of the Facebook Documents
[34] The Crown tendered a bundle of documents from Facebook. To support their admissibility, affidavits sworn by Facebook employees from the United States were presented. The trial judge did not admit the Facebook documents into evidence. The Crown submits that the trial judge erred in failing to admit them.
a. The Factual Summary Regarding the Facebook Documents
[35] Detective Mark Hodges was responsible for conducting the IT investigation in the case. This included looking into the “Gavin D Sweetie” Facebook profile. Detective Hodges contacted Facebook through Facebook’s law enforcement portal on the internet. This is a secure electronic link that permits the police to ask Facebook to preserve potentially relevant information while the police obtained judicial authorization. Once obtained, the authorization is sent to Facebook. In turn, Facebook sends the requested information to the requesting officer. In September of 2015, Detective Hodges received the documents that were the subject of the trial judge’s admissibility ruling. These documents had “Facebook Business Records” printed at the top. The documents contained all sorts of information but predominantly IP addresses.
[36] From these documents, Detective Hodges obtained a number of IP addresses that related to the various Facebook profiles of “Gavin D Sweetie”. He then obtained production orders for the internet providers linked to those IP addresses. One of those IP addresses belonged to Distributel Communications. An employee of that company testified and confirmed that this IP address was registered to Mr. Rashid.
[37] In order to connect Mr. Rashid’s IP address to the Facebook account of “Gavin D Sweetie”, the Crown tendered the documents received by Detective Hodges from Facebook in September of 2015. To lay the evidentiary foundation for their admission, the Crown presented two affidavits from Facebook. The affidavits had been requested by the prosecution in the early fall of 2018. Initially two affidavits, sworn October 26, 2018 by a Facebook employee, were used by the Crown to support the admission of the Facebook records under the statutory business records rule. When the defence objected on the basis that the affidavits were deficient, the Crown provided two further affidavits dated November 21, 2018, from a different Facebook employee. The trial judge ruled that he would consider all the affidavits on the admissibility question.
[38] All the affidavits referred to Facebook records attached to the affidavits. However, no records were in fact attached to the affidavits.
[39] The Crown advised the trial judge that they had received the affidavits by email. In the body of the email, Facebook stated it could not attach the originals of the records as they were in the electronic documents system. The Crown submitted that the affidavits proved that the Facebook records were kept in the usual and ordinary course of business. Thus, the requirements of s. 30 of the Canada Evidence Act, R.S.C. 1985, Chap. C-5. had been met.
[40] In the alternative, the Crown argued that the documents were electronic evidence admissible under s. 31 of the Canada Evidence Act. Detective Hodges testified that he received these records from Facebook. They were what they purported to be. Thus, the records were properly authenticated. The Crown submitted that the records could be admitted on this basis regardless of whether the affidavits were accepted or not.
[41] The defence objected that the documents were not properly authenticated. The affidavits averred that the documents attached to the affidavits were copies of the originals. However, the affiant did not attach any documents. The affidavits were therefore deficient and as a result, the Crown had failed to authenticate the records.
b. The Trial Judge’s Ruling
[42] The trial judge ruled that the Facebook documents were inadmissible. He noted that the affidavits from the record holder referred to copies of originals attached to the affidavit. However, there was nothing attached to the affidavits. The trial judge assessed the affidavits in terms of what should have been attached to them or what should have been attached by inference. However, the trial judge was unable to make any inference based on the substance of the affidavits. In his view, when an affidavit referred to documents attached or copies of the original records attached, they should be. Without the documents attached to the affidavit, the trial judge held that it was not possible to know what the affiant was referring to in their affidavit. He ruled that they were not admissible either as business records under s. 30 or electronic documents under s. 31 of the Canada Evidence Act. Although a copy of the electronic document would suffice if the original was contained on the hard drive of a computer, this did not obviate the need to properly identify the documents in the affidavit. If the sheer volume of documents made printing and attaching them to the affidavit impractical, there were alternative ways of attaching them, such as downloading the data onto a CD or a USB stick. While Facebook may be reluctant to do so due to the added expense, the trial judge stated that this was not the court’s concern.
c. The Arguments on Appeal
[43] The Crown submits that the trial judge erred in finding that the documents were not admissible as electronic documents pursuant to ss. 31.1 and 31.2 of the Canada Evidence Act. Both the authentication and the best evidence rules as set out in these sections were met. In terms of satisfying the best evidence provisions, Detective Hodges’ testimony sufficed. He testified about the procedure for requesting and receiving information from Facebook through the secure portal. The Crown submits that the trial judge erred in requiring the electronic documents to be attached to the affidavits since the actual documents could not be attached given the electronic nature of Facebook’s system. In sum, the Crown argues that there was nothing wrong with the electronic documents, only in the language used in the affidavits, which should not have been fatal to the admission of the evidence.
[44] Mr. Rashid submits that the trial judge was correct to exclude the Facebook documents. Sections 31.1 to 31.8 do not constitute a free-standing basis to admit electronic documents. Where properly admissible, the party seeking their admission must meet the authentication and best evidence rule set out in the provisions. The Facebook records that the Crown sought to admit were not clearly identified in the affidavits. The records received by Detective Hodges were provide by Facebook in 2015, three years before the Facebook affidavits were drafted in 2018. There was nothing in the affidavits that substantiated that the affiants had prepared and sent these records to Detective Hodges in 2015. The affidavits did not attach any records or documents, nor did the affidavits provide any information stating that the records they referred to were the records received by Detective Hodges. In 2015, Detective Hodges was provided with multiple Facebook documents at once. These were related to multiple different accounts, including two different Gavin D Sweetie Facebook accounts. In addition, Detective Hodges received from Facebook records from other accounts for other individuals. It was therefore unclear which accounts the affidavits were making reference to. Finally, despite the defence request to cross-examine the affiants, the Crown refused to produce them as they were in Austin, Texas and the cost of bringing them for cross-examination was prohibitive and would delay the trial.
[45] In summary, Mr. Rashid submits that the Crown did not satisfy the authentication requirement. Also, Detective Hodges could not explain how the computer system worked on Facebook’s end or that it was properly functioning. Finally, given the defects in the affidavits, the trial judge properly excluded the electronic documents tendered by the Crown.
d. Analysis
[46] To start the analysis, the purpose for the admission of the Facebook documents must be examined. In this case, it was for the truth of its content. The Crown wished to rely on the IP addresses contained within the documents to identify the holder of the Facebook accounts.
[47] Since these were electronic documents, the Crown was required to meet the authenticity and best evidence requirements under ss. 31.1 to 31.8 of the Canada Evidence Act. Unquestionably the threshold for the authentication of electronic documents is low or modest: R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at para. 67; R. v. Hirsch, 2017 SKCA 14, 353 C.C.C. (3d) 230, at para. 18; R. v. Martin, 2021 NLCA 1, at para. 30. Also, the statutory best evidence rule provides for a number of alternative methods of satisfying the rule, provable by either direct or circumstantial evidence, some of which rely on statutory presumptions available in the absence of evidence to the contrary: R. v. S.H., 2019 ONCA 669, 377 C.C.C. (3d) 335, affirmed on other grounds 2020 SCC 3, [2020] S.C.J. No. 3.
[48] However, merely meeting these requirements does not make electronic documents admissible. The admissibility of an electronic document also depends upon the purpose for which it is tendered and any related general rule of evidence: David M. Paciocco, "Proof and Progress: Coping with the Law of Evidence in a Technological Age" (2013) 11 C.J.L.T. 181 at 193. In order to do that in the case at bar, the Crown resorted to the business records exception found in s. 30 of the Canada Evidence Act.
[49] Affidavit evidence is permitted by the Canada Evidence Act: for business records see ss. 30(3) and (4); for electronic documents see s. 31.6. Thus, the Crown relied on the affidavits from Facebook.
[50] In my view, even without reliance on the affidavits from Facebook, the Crown met the low threshold for proving authenticity and the best evidence rule for electronic documents based upon Detective Hodges’ evidence alone: R. v. C.B., at paras. 69-72. Detective Hodges testified that the documents came from a secure Facebook internet portal in response to a production order that he sent to Facebook. On them was printed “Facebook Business Records”. Thus, this evidence can support a finding that the electronic documents were what they purported to be: Facebook documents. In addition, relying on the presumption found in s. 31.3(a), the police officer’s testimony could support a finding that at the material time, Facebook’s computer system was operating properly. Put simply, in the absence of evidence to the contrary, the fact that the system in place for obtaining the Facebook documents operated as it was supposed to was evidence that could support the finding of the integrity of the Facebook electronic documents computer system.
[51] However, that is not the end of the matter. The Facebook documents were only relevant if they fell within a hearsay exception. As the digital data could not be produced in its original state, electronic versions of that data were provided to the police which were then printed out and tendered to the court. To prove compliance with s. 30, the Crown had to rely on the affidavits from the Facebook employees. But as the trial judge correctly found, these affidavits were fundamentally deficient.
[52] The affidavits were fill-in-the-blanks boiler-plate affidavits. Printed on the affidavits is the heading “(Canada Evidence Act, Mutual Legal Assistance in Criminal Matters Act)”. The following is a summary of the affidavits from Facebook:
• The affidavit by Kristine Gonzalez, a Facebook employee, dated October 26, 2018, is a form affidavit on which it is printed that the affidavit is “to be used…where it is not possible or reasonably practicable to produce the original records or where the documents are computer print-outs.” The affidavit is styled “Affidavit with respect to Computer Print-outs and/or Copies of Original Records (attesting to authenticity)”. In the affidavit, she refers to “documents attached to this affidavit” as being copies that she made of original records or documents that she generated from the system. The space provided for the accounts the documents attached came from is left blank. There are no documents attached to the affidavit.
• A second affidavit, dated October 26, 2018, is provided by Ms. Gonzalez. It is a form affidavit which is to accompany the first affidavit, according to the instructions printed on the affidavit regarding its use. It is styled “Affidavit with respect to Computer Print-outs and/or Copies of Original Records (explaining the unavailability of originals)”. In this affidavit, Ms. Gonzalez avers that “Attached to this Affidavit are copies of original records maintained by Facebook Inc. in the usual and ordinary course of business.” The affidavit goes on to state that the original records were created in the usual and ordinary course of business by Facebook by a person who at the time of the making of the entry or record had knowledge of the circumstances or events set out therein. She avers that where the attached documents are photocopies of original records, it was not possible or reasonably practicable to produce the original records because …. There is then a blank line leaving the explanation unanswered. The same paragraph goes on to say, “or in the case of computer printouts retrieved directly from an electronic system, the original version of the information is in the electronic documents systems which cannot be provided.” There are no documents attached to this affidavit.
• There is a third affidavit, dated November 21, 2018, by Alexandro Verdugo, a Facebook employee. This is the same form affidavit as the first affidavit of Ms. Gonzalez. However, in this affidavit, it states that the attached documents are from the accounts: “XavierLeeDavis”, “100009070676890”, “GavinDSweetie”, and “100009850178098”. Mr. Verdugo also avers he made the attached copies, or he generated the attached documents from an electronic documents system. There are no documents attached to this affidavit.
• A fourth affidavit, dated November 21, 2018, by Alexandro Verdugo is the same as the second affidavit of Ms. Gonzalez. It is slightly different in that the last paragraph simply explains that it was not possible or reasonably practicable to produce the original records because the original version is in the electronic documents systems which cannot be provided. No accounts are identified. Again, the affidavit refers to the attached documents. There are no documents attached to this affidavit.
[53] In my opinion, this is not, as the Crown argues, a mere failure of wording in the affidavits. Even an articling student knows what a proper affidavit with attachments is. Resort to legal rules should not be required.[^1] Failing to attach the documents to the affidavits made it impossible to establish the evidentiary link between the documents received by Detective Hodges that the Crown wished to tender into evidence and the documents the affidavits stated were true copies of business records held by Facebook.
[54] While evidence other than the affidavits could be resorted to establish the evidentiary connection missing from the affidavits, Detective Hodges’ testimony and the circumstances surrounding his receipt of the documents raises more questions than answers. Detective Hodges requested and received documents from Facebook for multiple accounts, including two accounts that made reference to Gavin D Sweetie. Further, he received the documents in 2015, while the affidavits were sworn in 2018. Finally, both affiants claimed they were the ones that made or generated the documents that were said to be attached their affidavits.
[55] Given this state of the evidence, I fully endorse the trial judge’s conclusion that there was a gap in the evidentiary foundation required to establish admissibility under the business records rule.
[56] I observe that there were easy options to bridge the evidentiary gap. Even without attaching a physical CD or USB to the affidavit, the documents could have been emailed to the prosecution along with an emailed affidavit that expressly connected the emailed documents to the affidavit. Alternatively, the affiant could have provided specific details about the nature of the documents that were downloaded onto the secure portal Detective Hodges used to retrieve the documents and particulars about when that was done. Even during the trial, rather than resisting the defence request for leave to cross-examine the affiant, the Crown could have acceded to it and made the affiant available, which could have filled the evidentiary gap. Given Facebook’s familiarity with digital technology, this cross-examination could have been done remotely.
[57] I end with a quote from Paciocco J. (as he then was) in R. v. Donaldson, [2016] O.J. No. 7153 (C.J.). In that case, Facebook messages tendered by the Crown were ruled inadmissible. There were numerous deficiencies in proving authenticity and the best evidence rule for the electronic documents. Not without some exasperation, Justice Paciocco concluded:
But ultimately my view is this. If you have a case that is important enough to take the court's time for two days, and you have evidence that is significant enough that it should be put before a court, then the resources and attention to demonstrate the admissibility of that evidence should be committed, both at the investigative stage and at the prosecutorial stage.
[58] I echo those comments here.
2. Application of the Kienapple Principle
[59] The trial judge convicted Mr. Rashid of the sexual assault of E.W. but stayed the sexual interference conviction. In relation to L.J., he convicted Mr. Rashid of sexual assault but stayed the sexual interference and the invitation to sexual touching convictions. The conditional stays resulted from the application of the Kienapple principle. The Crown submits that the trial judge erred in doing so.
[60] Where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should only be convicted of the most serious offence: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The Kienapple principle is intended to protect against undue exercise of the prosecutorial power. It applies where there is both a factual and legal nexus connecting the offences. The factual nexus between the offences is established if the charges arise out of the same transaction. The legal nexus is established if the offences constitute a single criminal wrong: R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 28; R. v. Rocheleau, 2013 ONCA 679, at para. 24.
[61] In my opinion, for both E.W. and L.J. the factual nexus between the offences is established. The Crown does not argue otherwise.
[62] However, the Crown submits that there is no legal nexus between the different elements of the offences or the societal interests they seek to protect.
[63] Regarding the s. 271 offence of sexual assault and the s. 151 offence of sexual interference, the authorities contradict the Crown’s position. The elements of the sexual interference offence are substantially the same or alternative to the elements of sexual assault, either on the basis that one element is a particularization of another element or there being more than one method, embodied in more than one offence, to prove a single delict: R. v. S.J.M., 2009 ONCA 244; R. v. R.M.M. (1998), 1998 CanLII 1659 (ON CA), 122 C.C.C. (3d) 563 (Ont. C.A.) at para. 18; R. v. R.A.J., 2010 BCCA 304, at paras. 5-9. As in R.A.J., the convictions for sexual assault in the case at bar better capture the nature of the offence than would a conviction under s. 151. The convictions for sexual interference contrary to s. 151 were thus rightfully stayed.
[64] Regarding the conditional stay of the conviction for the s. 152 offence of invitation to sexual touching, the matter is not as clear. The societal interests that s. 271 and s. 152 seek to protect are similar, which is supportive of a legal nexus connecting the two offences. However, there are some significant differences in the elements of the offences. That said, on the particular circumstances of this case, I am satisfied that the trial judge did not err in conditionally staying the s. 152 conviction. The count is drafted in the most general of terms and was meant to be an alternative to proving the sexual assault count: R.A.J., at para. 10. Given that sexual assault was proven, the s. 152 conviction was superfluous.
3. Acquittals on the Counts of Criminal Harassment
[65] Mr. Rashid was charged under s. 264(2)(b) of criminal harassment by repeatedly communicating with E.W. and L.D. While concluding that the perpetrator was Mr. Rashid, the trial judge acquitted him of the offence of criminal harassment because the evidence did not establish he “repeatedly” communicated with the same person.
[66] On appeal, the Crown submits that although Mr. Rashid interacted with L.D. and E.W. on only one occasion, the circumstances of those single interactions constituted repeated communications. With L.D., Mr. Rashid repeatedly asked her for directions and made sexual comments. With E.W., he asked for directions to two different schools before making sexual comments.
[67] Mr. Rashid responds that communications on one occasion cannot constitute repeated communications as required under s. 264(2)(b). He submits that the Crown’s minute and superficial dissection of Mr. Rashid’s interactions with the two girls would undermine the requirement that a criminal harassment occur on more than one occasion.
[68] The leading authority on this issue is R. v. Ohenhen (2005), 2005 CanLII 34564 (ON CA), 77 O.R. (3d) 570, C.C.C. (3d) 309 (C.A.), at paras. 31-32 where Rosenberg J.A. explains:
In my view, the dictionary definitions of the words "repeat" and "repeated", from which the adverbial form "repeatedly" is derived, lead me to conclude that conduct which occurs more than once can, depending on the circumstances of the case, constitute "repeated" conduct or conduct which is "repeatedly" done and the section is met. In my view, it is unnecessary that there be a minimum of three events or communications. "Repeatedly" obviously means more than once but not necessarily more than twice.
While one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(c) and (d), it will not be sufficient to satisfy s. 264(2)(b). More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and should not be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs more than once, in my view, the actus reus can be made out. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and accused. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and accused.
[69] Thus, clearly the communication must happen more than once. However, what constitutes the “communication” is the central dispute here. Is it the entirety of the verbal interaction between the accused and the complainant, as Mr. Rashid argues? Put another way, must there have been more than one time, one date, that the two interacted? Or is it each time Mr. Rashid opened his mouth or directed a word towards the complainant, as the Crown seems to contend?
[70] In my view, the answer lies between these absolutes. Similar to the approach taken by Rosenberg J.A., what amounts to the “communication” is a question of fact that must be assessed contextually. Here the trial judge did not answer the question wrong. The evidence is reasonably capable of supporting a finding that the communication with E.W. and L.D. was not a repeated one. For each complainant, it was a single encounter and interaction with Mr. Rashid. There was no prior history between them. They were strangers to each other. The encounter took place in the street. It was a verbal communication involving a dialogue between two persons that evolved from a superficially benign request for directions towards matters of a sexual nature. The material communication was not long in terms of overall time. No significant gap existed between Mr. Rashid and the complainant conversing and the complainant reasonably fearing for her safety. Looked at contextually and keeping in mind the onus on the Crown to prove this essential element beyond a reasonable doubt, the trial judge made no reversible error in dismissing these counts.
[71] I acknowledge that if one used a lay sense of the word “harassment”, one could say that the girls were being “harassed” by Mr. Rashid. I have little doubt that the police investigation in this case was in response to complaints about a man “harassing” schoolgirls in the neighborhood. But one must be mindful of the need to place reasonable limits to the scope of criminal liability. Especially given the potential impact upon constitutionally protected speech. With this too in mind, I conclude this ground of appeal must fail.
4. Acquittals on All Counts Relating to F.K.
[72] The Crown argues that Mr. Rashid’s acquittal on the counts relating to F.K. should be set aside and a conviction entered. Yet, no error in fact or law made by the trial judge is identified by the Crown.
[73] The Crown is entitled to appeal on a question of fact alone. However, I cannot retry the case or substitute my own view of the evidence. I can review and re-assess the evidence to determine whether it is reasonably capable of supporting the trial judge’s conclusion: R. v. Abramoff, 2018 SKCA 21, at paras. 18, 23-24; R. v. Balogun-Jubril, 2016 ONCA 199, at para. 9.
[74] In my opinion, the evidence supports the conclusion reached by the trial judge. F.K. only encountered her assailant one time. She had never seen him before. She was unable to pick out Mr. Rashid in the photo lineup conducted by the police. Her in-dock identification three years later lacked any value, particularly since she admitted to looking up pictures and articles of Mr. Rashid once she learned of his name.
[75] The fact F.K. received an unanswered phone call from a number associated with Mr. Rashid, while suspicious, is only that when it comes to being significant evidence of identification. The Crown also pointed out that the trial judge made a finding of guilt regarding the allegations against E.W. when she too failed to pick out anyone in a photo lineup, and compared this to the circumstances surrounding F.K.’s similar failure. However, this comparison ignores a vital distinction as to why the trial judge came to a different conclusion regarding the two complainants; namely, the successful similar fact application strengthened the identification evidence in E.W.’s case.
[76] This ground of appeal has no merit.
C. MR. RASHID’S CROSS-APPEAL
1. Admission of the Bank of Montreal Security Video
[77] With respect to the counts involving L.J., the Crown introduced security videos from the Bank of Montreal branch where Mr. Rashid was alleged to have attended, leaving L.J. in his car. The security video from inside the bank showed a person fitting Mr. Rashid’s description as given by L.J., entering the bank at 4:59 p.m. Banking records showed that this person made two withdrawals from an account in the name of Mr. Rashid and his spouse: a $500 withdrawal at 4:59 p.m. and a second $500 withdrawal at 5:00 p.m.
[78] The Crown laid the foundation to admit the security video through Olivia Difresca.
a. The Evidence of the Bank of Montreal Employee
[79] Ms. Difresca was a physical security analyst with the Bank of Montreal. Part of her job was to deal with photo and video requests from law enforcement. However, she did not work on the request in the case at bar. Another Bank of Montreal analyst who no longer worked for the bank did.
[80] Ms. Difresca testified to the general procedure used by the Bank of Montreal to fulfill such a police request. Ms. Difresca testified that these operating procedures were in place in 2015 when the videos in question were retrieved. The procedure was the following. The security analyst would use the ATM number and the region code to find out the branch transit number. They would pull out the video by using the date and time when the relevant event happened. The request is pulled by using the bank’s password protected Verint software. The security analyst accesses this software using their secure computer that is located in a secure room. The analyst then retrieves the video, verifies the time displayed in the video, and ensures there are no issues with the recording. They put the date and time the transaction happened on the video and download the video onto a CD, which is sent via UPS to law enforcement. The file given to the police cannot be manipulated or altered in any way. Ms. Difresca testified that the video cannot be incorrect.
[81] In addition, Ms. Difresca testified that Chubb Edward, a security company, performs monthly checks and audits for the Bank of Montreal to ensure that all the cameras are operating properly and are representing the correct time. This is an additional safeguard used to ensure the accuracy of the times along with the analyst’s own verification check.
[82] The videos in question were shown to Ms. Difresca. When shown the images, she testified that this was what their Verint program looked like at its full functionality. Ms. Difresca identified the entry camera, the vestibule camera, and the greeter desk camera. These were common cameras in Bank of Montreal branches. The date on the video was September 18, 2015, starting at 16:50:01. She identified 2797 on the video as the transit number of the branch. She testified that this branch was located at 605 Rogers Road, Toronto. She testified that the vestibule camera showed the full area where the ATM’s were located. She also described the camera looking down at the ATM and the images taken from a camera inside the ATM. Ms. Difresca testified that based on her experience with such videos, she did not see anything wrong with the ones shown to her. However, she admitted that she did not do anything to confirm that the person who retrieved these videos followed the proper procedures.
b. The Trial Judge’s Ruling
[83] Defence counsel objected to the admissibility of the videos. He submitted that the videos were not properly authenticated. He argued that the person who retrieved the videos and who therefore could verify their integrity should have been called. He submitted that Ms. Difresca, who only testified to the general procedure, was unable to properly authenticate the videos.
[84] The Crown submitted that Ms. Difresca’s testimony established the required authenticity. She was able to identify the videos, the transit number, the cameras and the procedure by which the videos were taken. She testified that she could not see anything awry with the videos shown to her.
[85] The trial judge ruled the videos were admissible. He found that although Ms. Difresca could not definitively say that her predecessor followed the verification process, the operating procedures were in effect at the time and there was nothing to indicate that her predecessor did not follow the procedures.
c. Analysis
[86] The admissibility of evidence is a question of law reviewed on the standard of correctness. The factual findings and whether the facts met the legal criteria are questions of mixed fact and law and are reviewed on the standard of palpable and overriding error.
[87] On appeal, Mr. Rashid repeats the same argument he made at trial. He submits that the security videos were not adequately authenticated by Ms. Difresca as she was not the one who followed the procedures and retrieved the videos in question.
[88] Authentication is the showing by the proponent of the evidence that the thing or item proffered really is what the proponent claims it to be. In the absence of authentication, the item lacks relevance. Authentication requires the introduction of some evidence, either direct and/or circumstantial, that the item is what it purports to be. For electronic evidence or documents, the burden is on the party that seeks its admission to lead some evidence capable of supporting a finding that the electronic document is what it purports to be. This threshold requirement is not onerous: R. v. C.B., at paras. 63-68.
[89] While the evidence here is referred to as a “video”, it is an electronic document within the meaning of s. 31.8 of the Canada Evidence Act. It is not a photograph or a movie captured on film by a camera. Hence, s. 31.1 of the Canada Evidence Act applies.
[90] While some comments made by the trial judge could be interpreted as potentially a reversal of the onus onto Mr. Rashid, when his ruling is considered in the context of the evidence of Ms. Difresca and the other circumstantial evidence led, the trial judge was correct in concluding that the modest threshold for authentication had been met.
[91] Not only did Ms. Difresca testify to the general procedure used by the Bank of Montreal, she was shown the images that the Crown wanted to introduce. She identified significant aspects of the images. She identified how the images were in keeping with the appearance and functionality of the bank’s software program that stored such security videos. She identified the location of the cameras, the transit or branch number and where it was located, and the time and date information as captured on the videos. This testimony must then be assessed in the context of the general procedure that is followed by the Bank of Montreal and her testimony based upon her experience, that she did not see anything amiss in the images shown to her. In short, her testimony supported the finding that these Bank of Montreal security videos were what they were purported to be: Bank of Montreal security videos.
[92] Moreover, other circumstantial evidence supported the finding that these were the Bank of Montreal security videos taken of the man who was with E.W. on the day in question when he went into the branch. This evidence included: the fact that the description of the man captured in the security video was consistent with the description of the man given by E.W.; that the time in the security video is consistent with the time that E.W. said they had arrived at the branch; that the banking records showed that two transactions for $500 each were made at this ATM at the time indicated on the security video; and E.W.’s testimony that the man came back to the car with $1,000 in an envelope.
[93] Any shortcomings in the Crown’s case based on its failure to call the person who actually retrieved the security video was a matter of weight, not fatal to the proof of authenticity.
[94] Another route to admissibility of the Bank of Montreal security videos is s. 29 of the Canada Evidence Act. Although this section was not canvassed before the trial judge, it too is dispositive of the admissibility of the security video.
[95] The material portions of s. 29 states:
29 (1) Subject to this section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions and accounts therein recorded
(2) A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a true copy of it, and such proof may be given by any person employed by the financial institution who has knowledge of the book or record or the manager or accountant of the financial institution, and may be given orally or by affidavit sworn before any commissioner or other person authorized to take affidavits.
[96] R. v. Brar, 2020 ABCA 398, 14 Alta. L.R. (7th) 24 considered s. 29 and its relationship to bank security videos. The authority appears to be on all fours with the facts of this case and supports the admissibility of the videos under s. 29. Brar was convicted of fraud over $5000 for drawing four NSF cheques on his bank accounts. At trial, the Crown tendered video stills and video generated by the bank’s surveillance cameras through a bank investigator. This investigator testified that another individual had pulled the videos from their surveillance system. The investigator did not have personal knowledge of the stills and videos and did not personally retrieve them. The trial judge admitted the images and found that Brar was the person depicted in them completing the NSF transactions.
[97] The Alberta Court of Appeal held that the images were properly admitted under s. 29. The security system stills and video were banking records within the meaning of s. 29. The statutory requirements of that section did not require personal or first-hand knowledge of the records. The investigator’s employment with the bank and her affidavit evidence which attested to her general knowledge of the relevant records complied with the statutory preconditions for admissibility under s. 29. Even if the investigator did not physically pull each relevant video or image from the computer system, this did not mean that she did not have sufficient knowledge of the bank’s digital recordkeeping to competently attest that what was annexed to her affidavit were true copies of those video recorded transactions.
[98] In my opinion, the same can be said here of Ms. Difresca’s testimony. On that basis as well, these bank security videos were admissible.
2. The Similar Fact Application
[99] At trial, the Crown brought a similar fact application for the complainants who testified: S.H., E.W., F.K., L.J., and L.D. After the evidence was heard at trial and submissions made, the trial judge allowed the similar fact application for three of the complainants: S.H., L.D., and E.W. The trial judge used the similar fact evidence to convict Mr. Rashid of sexually assaulting E.W. Mr. Rashid was acquitted of the criminal harassment of L.D. He faced no charges in relation to S.H. Therefore, this ground of appeal only affects his conviction for sexually assaulting E.W.
[100] Mr. Rashid submits the trial judge erred in ruling that the similar fact evidence was admissible. He argues that the trial judge gave scant reasons for allowing the Crown application other than his conclusion. He further submits that the trial judge did not adequately take into account the dissimilarities in the conduct and the effect of collusion and the tainting of recollections between the complainants.
[101] The Crown responds that the trial judge committed no error in his similar fact ruling. It is submitted that when the trial judge’s reasons as a whole are considered, he gave appropriate consideration to the factors required to determine whether, with respect to these three complainants, the Crown had met the strikingly similar threshold. Regarding collusion, the Crown argues that I should defer to the trial judge’s factual finding that there was none. Finally, the Crown submits that it defies common sense and human experience to conclude that different perpetrators were involved in the three incidents.
a. Analysis
[102] Other than the charges they face, evidence that an accused has engaged in discreditable conduct or criminal acts is presumptively inadmissible. Such similar fact evidence has the potential to induce both moral and reasoning prejudice that generally outweighs its probative value: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 40; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 37. The onus is on the prosecution to satisfy the judge otherwise: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at paras. 17, 18.
[103] In this case, similar fact evidence was tendered to establish the identity of the perpetrator. In such an instance, the similar fact evidence must be strikingly similar such that the likelihood of coincidence that two different people committed the crimes is objectively improbable: Arp, at paras. 43, 48, 50. To determine this, firstly, the focus must be on the acts themselves and not on the evidence of the accused’s involvement in those acts: Perrier, at para. 21.
[104] In this case, the trial judge used the correct standard and test. Admittedly, his analysis was thin. However, Mr. Rashid does not argue insufficient reasons as a stand-alone ground of appeal. Regardless, I find that the reasons are sufficient for appellate review. In my opinion, when his reasons are looked at holistically along with the evidence tendered by the Crown, the trial judge made no reversible error in admitting the similar fact evidence.
[105] On the facts here, the modus operandi of the perpetrator can reasonably be characterized as a signature one committed by the same person. I look to the factors set out in Handy at para. 82. The offences against S.H., L.D., and E.W., although not really close in time to each other, all occurred in 2015 within a few months of each other. There were three incidents altogether. They were in the same geographic proximity to each other near a middle school or a high school when the contact was initiated. All three victims were young teenage females. The perpetrator was of the same general description: dark-skinned and in the same age range. Then there are the key factual similarities that amounted to a signature modus operandi. The young schoolgirls were all asked directions to a nearby school, including Michael Power High School. They were then asked specifically about certain female persons or friends they knew. Remarkably, he asked all three about “Kristin”. Then, his conversation shifted into one of a sexual nature. Finally, he took physical liberties with S.H. and E.W. With L.D., he did not have a chance to do so as she, feeling uncomfortable, walked away from his car. The dissimilarities, such as the fact that one happened in the morning and two in the afternoon, the fact he was walking in two of them and in a car in the third, or that the nature of his physical contact with each was not the same, do not rebut this signature modus operandi. In simple terms, the evidence reveals the same predator of young schoolgirls scouting the same school area, initiating contact by asking directions to the same school, then winning some trust by inquiring about female friends the girls knew, before talking sexual and perhaps trying something physical with them. On a balance of probabilities, the likelihood of this coincidentally being different perpetrators is objectively highly improbable.
[106] Turning to the second part of the test, the evidence connecting Mr. Rashid to this perpetrator was strong. Regardless of the alleged flaws in the circumstances of the photo line-up whereby S.H. picked out Mr. Rashid, the trial judge was entitled to give weight to this pre-trial identification procedure. Moreover, the trial judge concluded that the police surveillance conducted when L.D. encountered the man in the car resulted in the police soon thereafter arresting that perpetrator. This man turned out to be Mr. Rashid.
[107] Mr. Rashid submits that the similarities raised in the evidence of S.H., L.D., and E.W. were unreliable as they were tainted by their discussions with one another and with others regarding the incidents. However, the trial judge found there to be no collusion between the complainants. This factual finding is entitled to deference. I am not persuaded that the trial judge made any error in his conclusion. S.H. had given a statement to the police on the day of her encounter before any discussions with friends. She was not significantly impeached on any discrepancies between that statement and her testimony at trial. With respect to L.D., Mr. Rashid was arrested shortly after his interaction with her. Any allegation of taint in her recollections did not affect the trial judge’s conclusion that the police surveillance and the arrest proved this man to be Mr. Rashid. Admittedly, E.W. did speak to her friends before she went to the police in June of 2015. Still, the trial judge was in a unique position to assess her evidence and he concluded there was no collusion.
[108] There is no merit to this ground of appeal.
3. The Sentence Appeal
[109] Mr. Rashid has completely served his sentence. As a result, the sentence appeal is moot and will be dismissed.
Justice S. Nakatsuru
Released: May 11, 2021
COURT FILE NO.: CR-19-000000-00AP
DATE: 20210511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant/
Respondent on Cross Appeal
– and –
FATHI RASHID
Respondent/
Appellant on Cross Appeal
REASONS FOR JUDGMENT
NAKATSURU J.
Released: May 11, 2021
[^1]: [1] If need be, I refer to rules such as the Criminal Proceedings Rules for the Superior Court of Justice, SI/2012-7, Rule 4.06(3), which states exhibits shall be attached and filed with the affidavit; the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 4.06(3)(a), which states exhibits shall be attached to and filed with the affidavit; and the Criminal Rules of the Ontario Court of Justice in Rule 2.3(2)(b), which just generally refers to affidavits used in applications.