ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-10000146-0000

DATE: 20210713

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MATTHEW HAMILTON

O’Nelia Delgado, for the Crown

Alonzo Abbey, for Matthew Hamilton

HEARD: May 31, June 1, 2, 3, 4,

14, 15, 2021

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

1On January 27, 2018, Mr. Hamilton and N.R., the complainant, had an encounter in N.R.’s vehicle. N.R. says that she and Mr. Hamilton met so that he could purchase a cell phone she was selling. Instead, he pretended to be a police officer, threatened her with a gun, sexually assaulted her, and robbed her of her cell phone.

2Mr. Hamilton, in contrast, told the police in a statement that he and N.R. met to have a consensual sexual encounter, which he paid for. He admitted having a pellet gun and wearing a tactical vest. He denied threatening her with a gun. He denied pretending to be a police officer. He also denied robbing her of her cell phone.

3Mr. Hamilton is charged with 11 counts:

1. Falsely representing himself to be a peace officer (Criminal Code s. 130(1)(a));

2. Carrying a concealed firearm without being authorized to do so (Criminal Code s. 90(1));

3. Possession of a weapon for the purpose of committing an indictable offence (Criminal Code, s. 88(1));

4. Pointing a firearm (Criminal Code, s. 87(1);

5. Use of a firearm while committing an indictable offence (Criminal Code, s. 85(1)(a));

6. Use of a firearm in a careless manner (Criminal Code, s. 86(1));

7. Possession of a restricted firearm without being the holder of a licence or registration certificate (Criminal Code, s. 91(1));

8. Possession of a restricted firearm knowingly not being the holder of a licence or registration certificate (Criminal Code, s. 92(1));

9. Sexual assault (Criminal Code, s. 271);

10. Sexual assault while threatening to use a weapon (Criminal Code, s. 272(1)(a));

11. Robbery with a firearm contrary to s. 344(1)(a.1)).

4In submissions Crown counsel agreed that counts 7 and 8 had not been proven beyond a reasonable doubt and invited the Court to dismiss those charges.

BACKGROUND:

5On January 27, 2018 N.R. drove her white Mercedes to 812 Landsdowne Avenue, Toronto. She was going to meet Matthew Hamilton. They had arranged the meeting through Instagram direct messaging.

6N.R. testified that in January 2018 she was trying to sell an iPhone 6S. On January 27 she posted an ad on Instagram. Specifically, she posted a “story”. Mr. Hamilton responded and offered $500.00. They agreed to meet at an address that he provided. The whole discussion was on Instagram. She indicated that the discussion was on “story”, which is a feature that lasts for 24 hours and then automatically deletes. She asked to see a picture of him. He did send a picture through the messaging app, but it was a timed picture. The picture automatically deleted after she viewed it. She was not sure if the timed message mentioned on the text messages was the actual picture. He then started flirting and asking if he could pay to spend time with her. N.R. further testified that in his Instagram messages Mr. Hamilton continued to insist on meeting up and paying for sex. She messaged that she was down for $2000 and preferred a hotel. She testified that she thought he was talking a lot of nonsense and wanted to see if he was serious about sending money. Mr. Hamilton and N.R. then had the following exchange by Instagram message:

HAMILTON: Can I be honest? I just want the b.j. If you’re interested I’d only last about 5 minutes and I’ll give you 2000. We can do it in your car?

N.R.: Sure that works

HAMILTON: Ok! When can you be here?

N.R.: I’ll leave in 15

7N.R. testified that she was just agreeing because she didn’t think he was serious about anything. She agreed to meet him to sell the phone. The conversation continued (I retain the original spellings):

N.R.: Do you have a condom

HAMILTON: I don’t. Do you have any?

I’ll pqy 500 exrta for no condom?

N.R.: Ok

HAMILTON: *pay

Ok, there’s underground parking. That seems private enough!

I just have to see if the fob I have will access it

N.R.: Ok

HAMILTON: Ok! Fob can get us in the parking, perfect!

N.R.: K see you in a bit

8N.R. testified that she was merely playing the game that he was playing with her. She had no intention of doing any sexual acts with him. Mr. Hamilton told her that he had a modelling agency. He did not indicate anything about role playing.

9The police seized video from surveillance cameras at 812 Landsdowne. At time stamp 7:19 on January 27, 2018, N.R.’s white Mercedes drove up to the parking garage door (I will refer to the time stamps on the videos, although it is agreed that they are not completely accurate). She parked there and waited. Just prior to that N.R. and Mr. Hamilton had the following exchange on Instagram:

N.R.: Turning into complex

HAMILTON: Okay let me know when you’re in visitor’s parking of the garage and I’ll come down!!

N.R.: I’m here but garage isn’t opening

HAMILTON: Okay I’ll down

10N.R. testified that she parked in front of the garage. A surveillance video showed her Mercedes arrive there with a time stamp of 7:20 pm. At time stamp 7:22 pm Mr. Hamilton walked out of the building and got into the front passenger seat. Surveillance video captured him taking the elevator downstairs and then leaving the building through the underground parking garage. N.R. testified that he was wearing a long-sleeve jacket and a black vest that looked like a police vest. The surveillance video confirms that. She testified that the vest had a maple leaf logo on it. Mr. Hamilton asked her to move her car to the curb so she was not blocking the garage. She did so. He then asked her to turn off her car. The surveillance video shows that at time stamp 7:23 the Mercedes backed out of the driveway and drove around to the back of the building. At time stamp 7:25 the Mercedes came around to front of the building and parked. At time stamp 7:30 the brake lights came on as they sat there.

11N.R. testified that Mr. Hamilton said he was a cop and showed his vest and a gun on his hip in a holster. She had to do what he told her or he would have her arrested for conversations around prostitution unless she gave him a handjob. He said that she had to give him a handjob or she would go to jail. She said “no”. He told her she had the right to remain silent and that she could contact her lawyer. She said she wanted to contact her lawyer. He then took her phone, driver’s licence, and car keys and told her “this is all evidence”. He asked her to get out of the car. Her phone was a brand-new iPhone X that she purchased for $1800.00. He did not take the iPhone 6 that was for sale. That phone was not operating because she had taken her SIM card out. He put the items in a ziplock bag and he used a permanent marker to write her name on the bag. He laid out the items on the car and took pictures of them. He then told her to get into the car. He refused to give his badge number.

12The surveillance video shows that at time stamp 7:42 Mr. Hamilton got out of the passenger seat and went to the front of the Mercedes. The brake lights were still on when he got out. A few moments later the brake lights went off and N.R. got out of the driver’s seat. She also went to the front of the Mercedes. It is not clear from the video what they were doing there but at time stamp 7:43 Mr. Hamilton got back into the passenger seat. N.R. followed shortly into the driver’s seat. The brake lights stayed off. N.R. testified that when they got back into the car he pulled his gun out from his right hip, put the gun to her head, and said “give me a handjob.” She was scared and traumatized. He told her that she was a pretty girl with a bright future, good head on her shoulders, a nice car, and she shouldn’t throw it away just because she didn’t want to give him a handjob. He said this before he pulled out the gun. She also testified that before he put the phone in the bag he asked her to unlock her phone. He opened her Instagram app but she had already deleted the messages, explaining that she always deleted messages she didn’t need.

13According to N.R., Mr. Hamilton then unzipped his pants and pulled out his penis. She felt that he had to give him a handjob or he would hurt her. She never agreed. He never paid her any money. He put her hand on his penis and told her to stroke it, which she did until he ejaculated. He then got out of the car, telling her that he was keeping her phone as evidence.

14On the surveillance video at time stamp 7:52 Mr. Hamilton got out of the passenger seat. He walked back into the building through the pedestrian door beside the garage door using his key fob. He was carrying what appeared to be a phone in his left hand. Shortly after that N.R. got out of the driver’s side. The lights flashed consistent with the door being locked. She walked towards the garage door but then walked around the back of the building and out of sight of the camera. At time stamp 8:00 she emerged from the back of the building and walked to her car. She then walked by the front entrance, and at time stamp 8:01 went back to her car again. She then opened and closed the trunk. At time stamp 8:02 she talked to a man at the front entrance. It appears that he gave her his phone and she used it. She then went back to her car and at time stamp 8:04 she got in the car and drove around to the back of the building again.

15N.R. testified that after Mr. Hamilton left the car she approached people to make a phone call. She was able to call her boyfriend using a stranger’s phone. She was also able to enter the building. As she and Ms. Elbert, the building manager, both testified it is not the most secure building. N.R. can be seen entering the foyer of the building, then entering into the main area, and then leaving on more than one occasion. It is not clear where she went, but it is possible that she entered from around the back of the building.

16N.R. testified that when her boyfriend arrived about twenty minutes later, she used his phone to call the police. She also logged into the Apple “find my phone” app and showed that it was currently inside the building at 812 Lansdowne. She described her phone as a black iPhone X with a phone case on it that was white, or clear, and had pink confetti or glitter on the back of the case and a screen protector on the front.

17In cross-examination, N.R. agreed that in January 2018 she had told the police that she posted about selling an iPhone 6S. She agreed that in the messages before the Court the conversation was about the sale of sexual services. She also agreed that in her January 2018 statement to the police she never mentioned any conversation about sexual services. She testified that she never showed the messages about the sale of the phone to the police because the messages were deleted from her phone. She disagreed that was an important thing to have left out. She testified that she did not think that it mattered that she and Mr. Hamilton had made an arrangement for sexual services. She insisted that all of their conversations about the sale of the cell phone happened over the “My Story” function of Instagram. She testified that she could not remember the exact date and time that Mr. Hamilton contacted her about the cell phone but believed that it happened on January 27, 2018. She believes that she posted the ad prior to that. She decided to sell the phone to him because he was the highest bidder. She asked him whether he had a condom as she wanted to know what he would say. She did not necessarily agree that it meant she would follow through. She testified further in cross-examination that she didn’t think her conversation had anything to do with the fact that Mr. Hamilton sexually assaulted her.

18N.R. agreed that Mr. Hamilton sent her a picture. Counsel suggested to N.R. that she had seen a picture of him wearing a vest and a weapon in a holster. She was not sure. She agreed that it was possible that he sent her a picture of him wearing those items, but he never sent her a full body image. She disagreed that he told her that he had a fetish to dress up as a police officer. She agreed, however, that she asked what he looked like and then saw what he looked like. She also agreed that the point in the messages where the word “played” appears could be a photograph or a video.

19N.R. also testified in cross-examination that when they got out of the car it turned off because Mr. Hamilton took her keys. He told her to get out of the car at the time he asked for her keys, identification, and her cell phone. He took a photograph of those things on his phone. She did not know if there would have been a flash when he took the picture. He then gathered up the items and put them in a ziplock bag. She agreed that she could not be sure of the exact sequence of events, as they happened in 2018, she was frightened, and feeling traumatized. She testified that he pulled out the gun after they got back into the car. In her original police interview, however, she agreed that she told the police that Mr. Hamilton had showed her a gun as soon as he got in the car. She clarified that he just showed it to her when he got into the car, and said it was a poor choice of words.

20N.R. disagreed that she and Mr. Hamilton agreed on a price of $200 for a handjob, and that he paid her for it. She disagreed that she felt slighted because he did not pay her $2000. She disagreed that she thought it was the price. N.R. also could not recall what hand Mr. Hamilton used to write on the ziplock bag. She did recall that he had the gun on his right hand side and took it out with his right hand, so she assumed it was his dominant hand and assumed he was right-handed. N.R. did not have any of the ads or messages from the advertising of her phone. She testified that she deleted the ad and deleted all of the messages other than those from Mr. Hamilton. He deleted those.

21N.R. testified that she called her boyfriend after the incident. Video surveillance indicates that N.R. went into and out of the foyer of the building several times. Eventually her boyfriend arrived. She called the police and told them her story.

22Darryl Hopcutt was a resident of 812 Lansdowne. He lived there with his girlfriend (they later married) and their dogs. At around 11:00 pm he was walking his dogs in the courtyard of the building when he found an iPhone. It was about 30 or 40 feet from the building. The screen was down. He picked it up. It was heavily cracked, but he could see that there were WhatsApp notifications on the screen. He thought that perhaps a neighbor had dropped it. Mr. Hopcutt could not recall if he found the phone face down or face up. He brought it to his condo and showed it to his girlfriend. At her suggestion he took a photo of it and posted on the condominium storyboard. Nobody contacted him about it. He then took the phone downstairs and placed it on a table in the lobby. Surveillance video with a time stamp of 23:27 shows Mr. Hopcutt placing the phone on the table. He provided a photograph of the phone with the cracked screen to the police.

23On January 28th, in the early morning hours, the police executed a search warrant at 812 Landsdowne Avenue, Suite 903. Mr. Hamilton was the sole occupant. He was dog-sitting for his brother. The police arrested him and seized the following items:

• A vest with a Maple Leaf symbol;

• A black holster;

• A black Norincio MP22 9mm handgun;

• A black and silver CO2 pellet gun;

• Clothing belonging to Mr. Hamilton;

• Two rifles and ammunition;

• Mr. Hamilton’s cell phone;

• Keys to a gun safe, locks, and trigger locks;

• A firearms permit belonging to Mr. Hamilton’s brother; and,

• Ziplock bags.

24Mr. Hamilton does not have a firearms licence or a permit. He provided a sample of his DNA voluntarily. There is no doubt that he was the donor of the semen swabbed from N.R.

25Erika Elbert was the building manager in January 2018. She provided the police with the surveillance videos from the building. She testified that the courtyard at the back of the building is surrounded by a fence. One needs a key fob to enter the fence area, or one must enter the courtyard from the building itself. She could not, however, remember if the fence had been built before or after January 2018.

26Ms. Elbert testified that the day after the police contacted her Jasmine Fernando brought a phone to her. Jasmine’s boyfriend, and later husband, was Mr. Hopcutt. It would have been on the Monday or Tuesday after the incident with N.R. She recalled that the phone was damaged but not much else about it. She also admitted in cross-examination that she could not be entirely sure who gave her the phone. Constable Sweeney testified that on February 2, 2018, he attended 812 Lansdowne and took possession of the phone from Ms. Elbert. The phone appeared to have no charge and the screen was cracked. He handed the phone off to an officer of CISU. There is no doubt that the phone picked up by Constable Sweeney was N.R.’s phone, as she latter unlocked it for the police. The damaged screen of the phone appears to be similar to the damaged screen of the phone picked up by Mr. Hopcutt.

27On the Sunday morning after the incident, January 28, 2018, at time stamp 8:46 am, three people – two women and a man – entered the foyer area of 812 Lansdowne. One of the women pointed to the table where Mr. Hopcutt had laid the phone. The phone was still there. The woman who pointed then walked over to the table and took the phone. She showed it to the other two people. The man took it. Mr. Hopcutt and Ms. Elbert did not recognize anyone in the video. The police have been unable to identify the three people.

28I have carefully reviewed the video surveillance taken from the building. There is no doubt that Mr. Hamilton was wearing a tactical vest that resembles a police vest. He also appears to have a silver and black object in a holster at his right side. I infer that it was the silver and black CO2 pellet gun later found in the apartment and seized by the police. I have also reviewed the photos of the phone. It appears that the phone picked up by Mr. Hopcutt was indeed N.R.’s phone. What is unclear is how it got to the courtyard.

29Sgt Jeff Bangild of the Toronto Police gave expert evidence. He was qualified to give expert evidence in the area of Instagram, and how Instagram messaging and Instagram storyboard work. He described Instagram as a social media platform. People on Instagram post photographs and videos. There is also a “story” function that was introduced in 2013. Accounts can be open or private. Open accounts can be viewed by anyone, but private accounts can only be viewed by followers. In 2013 Instagram introduced a direct message function. Direct messages can only be seen by the sender and the recipient. If someone comments on a story, that becomes a direct message. Even if the story has expired, the direct messages will remain. Sgt Bangild further testified that he believed – although he was not certain – that in 2018 one could not delete individual messages in a direct message conversation. One had to delete the entire conversation. He testified that if a person received a message in relation to a story, but had a separate direct messaging conversation, there would be two different conversations. He disagreed with the suggestion from defence counsel that the two conversations would merge into the same inbox.

ISSUES AND ANALYSIS

30Mr. Hamilton gave a statement to the police upon his arrest. It was videotaped. Mr. Abbey conceded that the statement was voluntary. It was played as part of the Crown’s case in chief, although it contained largely (although not entirely) exculpatory statements.

31As Justice Cory famously instructed in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at para. 11, where an accused person testifies, the trial judge might well instruct the jury as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

32An accused need not actually testify in order to provide exculpatory evidence. Evidence can be found in an accused’s statement to the police, or in any evidence that can be a source of reasonable doubt: R. v. Cyr, 2011 ONCA 546 at paras. 30-34.

33As Justice Doherty explained in that case, evaluations of credibility or reliability “of exculpatory evidence in a criminal case do not raise either/or choices, but must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt.” It is not a binary choice of whether I believe either N.R. or Mr. Hamilton: R. v. C.L.Y., 2008 SCC 2. The longstanding approach, of course, is that if I am not sure who to believe I must acquit: R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.) at para. 38. That flows from the burden of proof, which is on the Crown and never shifts.

34Thus, I will first evaluate whether I am left in a state of reasonable doubt based on Mr. Hamilton’s statement. I can believe some, none, or all of his evidence.

(a) Do I believe Mr. Hamilton or does his evidence leave me with a reasonable doubt?

35Crown counsel argues that Mr. Hamilton’s explanations to the police were not credible. He lied to N.R. about his address in order to lure her to meet with him. He was untruthful about the amounts he was to pay her. He was untruthful about his occupation, pretending to be a high-powered businessman when he was not. His evidence, she argues, is contradicted by the video surveillance evidence.

36I find myself in partial agreement with Crown counsel. As I will explain, there are serious problems with some aspects of Mr. Hamilton’s story. There are, however, aspects of his police statement that leave me with a reasonable doubt about several of the charges.

37I will start off by saying that I take nothing from the fact that Mr. Hamilton may have been untruthful about his profession in his messages to N.R. It is a prominent feature of the internet that people lie and exaggerate about themselves and their identities all the time. Indeed, one would be foolish to accept such things at face value online. No expert evidence is required for that proposition.

38Sgt Thompson interviewed Mr. Hamilton. Mr. Hamilton told him that he worked as a camp counsellor with children with learning disabilities. He spent part of the year in Australia where he taught pre-school. He told Sgt. Thompson that he had smoked some marijuana earlier the evening before, perhaps thirty minutes before the police arrived.

39Mr. Hamilton stated that he and N.R. had agreed over Instagram that he would pay her for a blowjob. He said that there was no iPhone to be bought, sold, or traded. He said that he and his brother had done photography for Instagram models and named some of the women. He said that N.R. was well aware that he was wearing a vest and a BB gun. He said that he wanted to wear the vest while getting a blow job, and that she was okay with that. The CO2 gun was not even a real gun, and it did not operate. They agreed to go into the underground parking but he could not get the door open. N.R. said that it would be two thousand for the blowjob; he countered that it was $200. He insisted that if he had access to his cell phone and to data that he could show Sgt Thompson the messages. He also stated that he did not have a data plan, so he had to be connected to a wi-fi network in order to access social media. Mr. Hamilton said that he and N.R. argued about the amount. She had deleted the messages and he could not access them from her car so there was no way he could check at that point. They continued to discuss money, and eventually she agreed to give him a handjob for $200. She did so, and he ejaculated mostly on himself. He paid her, and then as he left her car she started screaming hysterically.

40Mr. Hamilton said that he had the CO2 gun in a plastic case. He said it was not really a holster although it clipped on to his waist. The police, of course, seized a holster and a CO2 pellet gun from the apartment. Mr. Hamilton admitted to Sgt Thompson that he did take the CO2 gun out but that it never left the plastic casing. He said that N.R. asked if she could see the gun. He said he “went like that” with his jacket and gestured that he pulled the jacket back. He insisted that the gun never left the plastic casing.

41Mr. Hamilton described with his hands how he showed the CO2 gun to N.R. He pulled his hand from his waist, and then brought his hand back down to his waist and it stayed on his lap. He told Sgt Thompson that he tried to re-clip it, but he could not because of his position in the car. The gun stayed on his lap. In response to a question and a gesture from Sgt Thompson, he then again showed that he held the gun away from his chest. I have carefully watched that portion of the interview several times. Despite the submissions of Crown counsel, I am unable to say that Mr. Hamilton’s demonstration amounted to an admission that he pointed the firearm at N.R. The following exchange occurred:

THOMPSON: So, it was pointed at her, but you didn’t like, go – right – “oh, give me a hand job” it’s kind like –

42At that point Sgt Thompson put his hands together and pointed his index fingers with his arms outstretched in a gesture as if he were holding a handgun.

HAMILTON: Um hm.

THOMPSON: “This is a gun” kinda thing, and “I’m just gonna leave it here while” – shit happens.

HAMILTON: No, like – this like – yeah like – this – the gun –

43I am unable to say that Mr. Hamilton’s murmur of “um hm” amounted to an acceptance of Sgt Thomson’s words “so it was pointed at her”. Again, having watched the video several times, I believe that Mr. Thompson was denying that he was holding and pointing the handgun in the manner suggested by Sgt Thompson’s gestures.

44Mr. Hamilton told Sgt Thompson that he had told N.R. that he was not a police officer in the context of the discussion of the gun:

THOMPSON: Okay. You pull the gun out because part of the fun-

HAMILTON: Not part of the fun- she’s just like, ‘Are you like- are you even a

cop’. I was like, ‘I’m not’. It’s like, ‘I’m not a cop’ (UI:01)-

THOMPSON: You told her you weren’t a cop.

HAMILTON: Yeah, and she’s like- I don’t know if she was under the impression that I was a cop and I was like, coming down-

THOMPSON: Uh uh.

HAMILTON: Tuh (sic) like- like- get like this like- to get his blow job-

THOMPSON: Yeah.

HAMILTON: ‘ Cause (sic) she like, she literally asked- though not like, it’s like- to even have the gun- she’s like, ‘Are you even a cop’.

THOMPSON: Yeah.

HAMILTON: I was like, “I’m not a cop and this is the gun”. And, I put it down.

HAMILTON: I told her it wasn’t loaded. I didn’t tell her it was CO2, like-

THOMPSON: Yeah. But, you didn’t – you did tell her you weren’t a cop.

HAMILTON: I did say, “I was not a cop”.

45Mr. Hamilton did, however, agree with the following statement:

THOMPSON: Eh – you know what you point it in her direction.

HAMILTON: Yes –

THOMPSON: Okay.

HAMILTON: yeah, that –

THOMSON: And –

HAMILTON: And, I can’t do anything about it.

46Mr. Hamilton admitted that he did not tell N.R. that it was not a real gun.

47I turn to the evaluation of Mr. Hamilton’s credibility.

48I do not entirely believe Mr. Hamilton’s explanations to Sgt Thompson. There are troubling aspects to his statement. It is troubling that he messaged N.R. that he would pay $1500 or $2000 for sexual services, but then claimed in the interview that he only meant to type $150 or $200. The problem is that it was not a one-off mistake. He repeated the amounts throughout the Instagram messages. I do not accept his claim that it was a simple mistake. I also do not accept his claim that N.R. well knew that he would be wearing a police-type vest and carrying a gun before he got into her car – there is nothing to indicate that in the Instagram messages. Mr. Hamilton did send her a photograph, but there are no explanations in the messages as to why he might have been wearing a vest, and no indication that he had a fetish of some kind. There is no evidence that he sent her a message indicating that he would be the guy in the bullet-proof vest with the Canadian flag, as he told Sgt Thompson.

49I also find it troubling that Mr. Hamilton took a picture N.R.’s identification. He admitted it was “almost for his safety” but also something of an intimidation tactic. He claimed it was a “security thing” because it was a weird interaction.

50In order to prove the offence of pointing a firearm, the Crown must prove the actus reus of the offence – the physical pointing of the firearm. The Crown must also prove that the accused intended to point the firearm at a person. Mr. Hamilton’s description of what he did with the CO2 gun is also troubling. I find it difficult to believe his evidence entirely. He admitted that he could not do anything about the fact that the firearm was pointed in the general direction of N.R. I do, however, accept and believe that he did not intend to point it at her.

51I turn to the cell phone. It is possible that Mr. Hamilton took N.R.’s cell phone. It is also possible that he tossed it over the balcony at some point. That said, to make that finding would require me to speculate. There is no evidence as to where his brother’s apartment was in relation to where the phone was found (other than that it was on the same side of the building). Mr. Hamilton denied taking the phone and tossing it off the balcony when the suggestion was put to him by Sgt Thompson. At the end of the day, I do not believe N.R.’s evidence that Mr. Hamilton took the phone (for reasons I will explain below) and I am left in a state of reasonable doubt about what happened to that phone. Mr. Hopcutt left the phone on the table. Three unknown people then took the phone; and yet Ms. Elbert testified that Mr. Hopcutt’s girlfriend gave her the phone – although she could not be sure. Presumably those people were not residents of the building, because Mr. Elbert and Mr. Hopcutt did not recognize them. The police tried to identify them but could not.

52N.R. testified that her phone had a case with pink glitter on it. The phone found by Mr. Hopcutt did not have a case. Neither did the phone turned over to Ms. Elbert – assuming that it was the same phone. Sgt Thompson told Mr. Hamilton that the police had found the cell phone in the courtyard beneath his brother’s balcony (I assume that was a bluff, because the police did not yet have possession of the phone although they presumably knew it was in the area due to N.R. using the “find my phone” app). Although Mr. Hamilton admitted to touching the phone, he denied taking it with him. He also denied Sgt Thompson’s suggestion that he had taken it and tossed it off the balcony.

53The Crown cannot explain what happened to that phone. Of course, the Crown does not have to prove any particular piece of evidence beyond a reasonable doubt: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 at para. 46. The Crown also need not prove the continuity of a particular piece of evidence beyond a reasonable doubt: R. v. Parsons (1977), 1977 CanLII 55 (ON CA), 17 O.R. (2d) 465 (Ont.C.A.) at paras. 15-16; affirmed R. v. Charette, 1980 CanLII 31 (SCC), [1980] 1 S.C.R. 785. A criminal case cannot resolve every factual issue. The important question is whether, on the whole of the evidence, I am left with a reasonable doubt: R. v. Vuradin, 2013 SCC 38 at para. 21. Here, the questions associated with the phone, as well as N.R.’s credibility problems, cause me to have a reasonable doubt that Mr. Hamilton robbed her of that phone. Ultimately, the Crown cannot explain how the phone got from N.R. to Constable McSweeney over the course of five days. In most cases continuity will not be an insurmountable problem for the Crown. In this case, however, I simply cannot be sure that Mr. Hamilton took N.R.’s phone when he left the car. The surveillance video shows that he was clearly carrying a phone when he walked back into the building, but it is impossible to say whether that was N.R.’s phone or his own phone. Accordingly, I am left with a reasonable doubt about that offence.

54At the end of the statement, after Sgt Thompson left, Mr. Hamilton began talking to himself. There is no doubt in my mind from watching the video that he knew he was being recorded and contrived to tell part of his story.

55There is evidence that confirms Mr. Hamilton’s story to the police, or at least important aspects of it. The Instagram messages confirm the main point of his story, which was that the meeting with N.R. was about paid sexual services. Mr. Hamilton said that he walked to the building after leaving her car, and that she started screaming hysterically, at which point he started running and became scared. He took the stairs up to the 9th floor. The surveillance video also confirms that he walked to the door, and then ran through the building. He admitted that he did not tell N.R. that he was not carrying a real gun, which was a harmful admission.

56I do, however, believe Mr. Hamilton on the central issue in this case. I believe that Mr. Hamilton was truthful when he told Sgt Thompson that the sexual encounter was consensual, but that he and N.R. haggled about the price. I also believe him when he says that he and N.R. argued about the type of sexual service – whether he was to receive a blowjob or a handjob. I accept his explanation because the Instagram messages show, quite unequivocally, that he and N.R. met for a sexual purpose and that he was to pay for sexual services. His explanation that they disagreed about the price in person is consistent with the Instagram messages. The surveillance video also shows, quite unequivocally, that N.R. was about to drive into the underground parking lot to provide those sexual services, as she stationed her Mercedes in the driveway. That was also consistent with the Instagram messages. I accept his explanation to the police that he did not threaten N.R. with a firearm because that is consistent with the consensual sexual encounter set out in the Instagram messages.

57As I will explain next, I do not accept N.R.’s evidence.

(b) Am I satisfied beyond a reasonable doubt on the basis of the evidence that I do accept?

58I cannot accept N.R.’s evidence. N.R. initially told the police that she met Mr. Hamilton to sell him a cell phone. She maintained that position even after the police confronted her with the Instagram messages. She insisted at this trial that she met Mr. Hamilton to complete the sale of the phone.

59Regrettably, I find that N.R. lied to the police and was untruthful with this court. I find her evidence is not worthy of belief. I do not believe her evidence that she and Mr. Hamilton met over a phone. That evidence was contrived. I want to stress that I do not make this finding because she arranged to have a consensual sexual encounter for money. That fact is irrelevant to her credibility and reliability; what is relevant is that she actively lied to the police about it. It may be understandable that she was embarrassed or ashamed when she first disclosed the alleged assault to the police. I say that even though I agree with Mr. Abbey that N.R.’s initial untruthful disclosure prevented the police from fully and properly investigating the alleged offences. What is less understandable is that she continued to deny the obvious reality even in the face of the text messages that clearly show that she was arranging a sexual encounter. Moreover, much of the video evidence confirms sexual aspects of the text messages. N.R. expresses in her Instagram messages that the underground parking area is private enough for a sexual encounter; and Mr. Hamilton gets into her car as she faces the garage. And yet, N.R. continued to deny that she intended a sexual encounter. Moreover, it makes no sense to insist, as she did, that when they agreed to meet to sell a phone it was good that it was in a lit underground parking. It is unclear to me why privacy would be required to exchange money for a cell phone. I would have thought that a reasonable person, meeting a stranger to exchange a phone for money, would want to meet in a highly public place for safety purposes.

60There is no evidence, other than N.R.’s say-so, that she ever put her phone up for sale and I do not believe her. I find that the story of the sale of the phone was contrived. Unfortunately, I find that it colours all of her evidence. This is not a situation where a witness cannot properly recall relatively minor details that are not material. Rather, it was a major lie in respect of a material point – a major lie that she continued to tell not only to the police but to the court as well. I agree with Mr. Abbey that her lies also made it impossible for the police to properly investigate the case.

61I accept the evidence of Sgt Bangild regarding Instagram. I accept that there is a “story” function and that a story disappears after 24 hours. Ultimately, however, whether N.R. posted about her phone relies on her credibility. The expert evidence of Sgt. Bangild does not actually assist the Crown.

62Crown counsel argues that N.R. never backed away from her position that the encounter was engendered by the sale of a cell phone. Of course, the same can be said of Mr. Hamilton’s assertion that he never took her phone and never assaulted N.R. Consistent assertion of a position is not in and of itself a measure of credibility. In this case, I do not accept that Mr. Hamilton robbed N.R. of her cell phone. N.R.’s evidence in this regard is not credible for the reasons I have explained.

63N.R. had other credibility problems as well. She said different things at different times about the sale of the iPhone 6S. She testified at the preliminary inquiry that the agreement was to sell the phone for $300.00. At trial she testified that the price was $500.00. She explained the inconsistency as a mistake and the proper amount was $500.00. She testified at the preliminary inquiry that she was still getting messages about the phone for sale, and that she had never taken the ad down. At trial, she testified that the storyboard post came down automatically. She also explained that inconsistency as a mistake. N.R. also testified that she had no contact on Instagram with Mr. Hamilton prior to January 27. In fact, he had messaged her (and she had responded) in December and earlier in January. She explained that she had forgotten about those messages.

64These sorts of relatively minor inconsistencies (although the inconsistency about taking down the story post) can often be dismissed as immaterial or inconsequential when evaluating the credibility of a witness. The problem here, however, is that they are related to an important lie to the police on a highly material point. They are not immaterial to N.R.’s credibility.

65I therefore find that I cannot believe any aspects of N.R.’s evidence except where it is confirmed by video or physical evidence. Thus, I do not accept N.R.’s evidence that Mr. Hamilton threatened her with a gun by putting it to her head, threatened her with arrest, or forced her to perform a sexual act without her consent. I also do not believe her denials that Mr. Hamilton told her that he had a fetish to dress up as a police officer (although, that does not mean I accept Mr. Hamilton’s statement to the police on that point). At the end of the day, I am simply not sure who to believe on the point of whether Mr. Hamilton told her he had a police fantasy.

66Some of the physical evidence confirms parts of N.R.’s evidence – the seizure of the tactical vest, the DNA, and some of the surveillance video, for example. Of course, some of the physical evidence also confirms parts of Mr. Hamilton’s story – the surveillance videos and the text messages, for example.

67At the end of the day, I acquit Mr. Hamilton on three bases: first, I believe some of his evidence; second, some of his evidence might reasonably be true, thus meeting the second branch of W.D.; and third, I am simply unsure who to believe with regard to other aspects of the evidence. Mr. Hamilton is entitled to acquittals on all counts, as I will explain:

(c) Application to each individual count:

68Count 1 – Falsely representing himself to be a peace officer (Criminal Code s. 130(1)(a)): I do not accept N.R.’s evidence that Mr. Hamilton falsely represented himself as a police officer. I do not fully accept Mr. Hamilton’s statement that he told N.R. that he was not a police officer; his evidence might, however, reasonably be true, thus leaving me with a reasonable doubt. In essence, I am not sure who to believe. I find Mr. Hamilton not guilty of this count.

69Count 2 – Carrying a concealed firearm without being authorized to do so (Criminal Code s. 90(1)): It is an agreed fact that the CO2 gun was a firearm as defined by the Criminal Code. The question is whether it was concealed. The offence has three elements: first, that the accused was carrying; second, whether the object is a firearm and the accused knows it to be a firearm; and third, that it is concealed: R. v. Felawka, [1994] 4 S.C.R. 199 at para. 18. Cory J. explained the mental element at para. 38:

In summary then, the requisite mens rea or mental element of s. 89 will be established if the Crown proves beyond a reasonable doubt that the accused concealed an object that he knew to be a weapon. In order to prove concealment it would have to be established that the accused took steps to hide the weapon so that it would not be observed or come to the notice of others.

70In this case, the evidence is that Mr. Hamilton intended the opposite of concealment. On the evidence of both N.R. and Mr. Hamilton he brought the weapon along for the specific purpose of showing it to her. As I read Felawka and the cases summarized by Cory J., the purpose of the concealment – whether nefarious or benign – is irrelevant. Mr. Hamilton is entitled to an acquittal on this count.

71Count 3 – Possession of a weapon for the purpose of committing an indictable offence (Criminal Code, s. 88(1)): As I have already explained, I am not satisfied beyond a reasonable doubt that Mr. Hamilton committed the indictable offences of either pointing a firearm, robbery, or sexual assault (the Crown has not particularized this count). I am also not satisfied beyond a reasonable doubt that Mr. Hamilton intended to possess the CO2 gun for the purpose of committing any of those offences. He is acquitted on this count.

72Count 4 – Pointing a firearm (Criminal Code, s. 87(1)): I do not believe N.R.’s evidence that Mr. Hamilton pointed a firearm at her. I am left with a reasonable doubt on this count because Mr. Hamilton’s explanation might reasonably be true. I also find that I am not satisfied beyond a reasonable doubt that Mr. Hamilton intended to point a firearm. In essence, I am not sure who to believe. Mr. Hamilton is acquitted on this count.

73Count 5 – Use of a firearm while committing an indictable offence (Criminal Code, s. 85(1)(a)): Again, I am not satisfied beyond a reasonable doubt that Mr. Hamilton committed the indictable offences of either pointing a firearm, robbery, or sexual assault (the Crown has not particularized this count either). I am also not satisfied beyond a reasonable doubt that Mr. Hamilton used or intended to use the CO2 gun for the purpose of committing any of those offences. He is acquitted on this count.

74Count 6 – Use of a firearm in a careless manner (Criminal Code, s. 86(1)): As Charron J. for the Supreme Court of Canada explained in R. v. Gunning, 2005 SCC 27 at para. 21:

The gravamen of the offence is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person. If a reasonable doubt exists, either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a person cannot be found guilty of the offence.

75N.R. testified that Mr. Hamilton took the gun, pointed it at her head, and threatened her if she did not perform a sexual act. If that were true, it would certainly constitute a marked departure from the standard of care of a reasonably prudent person. The problem is that I do not believe N.R. and I do not accept her evidence. Mr. Hamilton’s explanation is that he showed N.R. the firearm but did not take it out of the plastic case or threaten her with it. Although I have some difficulty accepting his evidence, I find that it does leave me with a reasonable doubt about whether his conduct constituted a marked departure from the standard of care. Again, I am also not sure who to believe. Accordingly, Mr. Hamilton is acquitted on this count.

76Count 7 – Possession of a restricted firearm without being the holder of a licence or registration certificate (Criminal Code, s. 91(1)): The Crown concedes that an acquittal is proper on this count.

77Count 8 – Possession of a restricted firearm knowingly not being the holder of a licence or registration certificate (Criminal Code, s. 92(1)): The Crown concedes that an acquittal is proper on this count.

78Count 9 – Sexual assault (Criminal Code, s. 271): As I have already explained, I am not satisfied beyond a reasonable doubt that Mr. Hamilton committed a sexual assault. I do not believe N.R. on this point and I accept the statement of Mr. Hamilton. He is acquitted on this count.

79Count 10 – Sexual assault while threatening to use a weapon (Criminal Code, s. 272(1)(a)): Again, I am not satisfied beyond a reasonable doubt that Mr. Hamilton committed a sexual assault or that he threatened to use a weapon in committing a sexual assault. I do not believe N.R. on this point and I accept the statement of Mr. Hamilton. He is acquitted on this count.

80Count 11 – Robbery with a firearm (Criminal Code, s. 344(1)(a.1)): Again, I am not satisfied beyond a reasonable doubt that Mr. Hamilton took N.R.’s cell phone. I do not believe N.R. on this point. Accordingly, he is acquitted on this count.