COURT FILE NO.: 20-RH19788
DATE: 2022/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
BERNARD MOMPREVIL
Accused
Sonia Beauchamp, Counsel for the Crown
Natasha Calvinho, Counsel for the accused
HEARD: December 13, 14, 15, 16, 19 and 21, 2022
RESTRICTION ON PUBLICATION
Pursuant to s. 486 of the Criminal Code, no information that could identify the victim or a witness in this case shall be published in any document or broadcast or transmitted in any way.
Trial Decision
Doyle J.
[1] The accused, Bernard Momprevil, faces the following five charges:
On or about September 5, 2019, he failed to comply with a term of his probation order dated March 2, 2017 (“probation order”), namely, not to be within 500 metres of where he knows H.A.S., A.Z., L.S.R., A.A.S. or W.A.S. live, work, go to school or frequent, contrary to s. 733.1(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”);
On or about November 28, 2019, he failed to comply with a term of his probation order, namely, not to be within 500 metres of where he knows H.A.S., A.Z., L.S.R., W.A.S. or A.A.S. live, work, go to school or frequent, contrary to s. 733.1(1) of the Code;
On or about September 5, 2019, without lawful authority and knowing that H.A.S., W.A.S., A.A.S. or I.A.S. was or were harassed or recklessly as to whether the person was or persons were harassed, engage in besetting or watching the place of residence of W.A.S. or I.A.S. or A.A.S. and caused H.A.S., W.A.S., A.A.S. or I.A.S. to reasonably fear for personal safety or safety of each other, or safety of one of their family members, contrary to s. 264(3) of the Code;
That between June 1, 2019 and September 17, 2019, without lawful authority and knowing that another person, namely A.A.S., was harassed or recklessly as to whether the person was harassed, engaged in threatening conduct or besetting or watching the place of residence of A.A.S. and caused the said A.A.S. to reasonably fear for her personal safety and the safety of her family, contrary to s. 264(3) of the Code; and
That between June 1, 2019 and September 17, 2019, failed to comply with his probation order not to be within 500 metres of where he knows A.A.S. lives, works, goes to school or frequents, contrary to s. 733.1(1) of the Code.
[2] This case involves a family of a mother and her three daughters who experienced a troubling past with the accused that led to a conviction of criminal harassment in 2016.
[3] The family members were fearful for their safety and were certainly on the lookout for the accused in the neighbourhood. Anytime a family member received a call from no caller ID who hung up, anytime they had postings of their photos on a fake social media and anytime they saw someone in their backyard, some of the family members would believe it was Mr. Momprevil.
[4] This case involves the issue of identification. Was the individual who is the subject of the allegations, beyond a reasonable doubt, the accused, Mr. Momprevil?
[5] As a general comment, the court notes that the investigation did not proceed with expediency, the complainants were usually interviewed together and scanty details of the preparator were given by the complainants.
[6] All of the complainants honestly believed they had sighted the accused at the relevant times as set out in this decision. But as the renowned jurist, the late Justice Rosenberg in R. v. Hanemaayer, [2008] ONCA 580, stated at para. 29:
However, this case represents an example of how flawed identification procedures can contribute to miscarriages of justice and the importance of taking great care in conducting those procedures. Mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions.
[7] The court has suspicions and concerns about the actions of Mr. Momprevil. But this, on its own, is not enough for a criminal conviction.
[8] The Crown indicated that an acquittal should be entered on Count #5.
[9] For the reasons that follow, the Court finds Mr. Momprevil not guilty of counts 1, 2, 3, 4 and 5 on the indictment.
Legal Principles
[10] The issue that this Court must decide is whether the Crown has proven each of the elements of the alleged offences beyond a reasonable doubt.
[11] Mr. Momprevil is presumed to be innocent, unless and until the Crown proves his guilt beyond a reasonable doubt.
[12] The obligation never shifts. Mr. Momprevil did not have to present evidence.
[13] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for, or prejudice against, anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence or lack of evidence.
[14] It is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. In R. v. Starr, 2000 SCC 40, 190 DLR (4th) 591 at para. 242, the Supreme Court stated that the standard of proof beyond a reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities.”
[15] Since this case rests on its facts and the issue of identification, it is helpful to review the legal principles when dealing with the issue of identification.
[16] In R. v. Campbell 2017 ONCA 65, at para. 10:
This court has confirmed that “recognition is merely a form of identification evidence” and, as such, “[t]he same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence”: R. v. Olliffe, 2015 ONCA 242 at para. 39. This court also noted in that paragraph, however, that “[t]he level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. Unlike cases involving the identification of a stranger, the reliability of recognition evidence depends heavily on the extent of the previous acquaintanceship and the opportunity for observation during the incident [citation omitted].
Brief Background
[17] For ease of reference, I will refer to I.A.S. as the mother, H.A.S. as the eldest sister, A.A.S. as the middle sister and W.A.S. as the youngest sister.
[18] On December 16, 2016, Justice Bourgeois convicted Mr. Momprevil of one count of criminal harassment for repeatedly communicating with the eldest sister between September 2013 and January 2016. The communications were through various electronic forms, and he telephoned her at her home and at work. He also attempted to get in contact through her sisters and friends and, on one occasion, attended her mother’s home.
[19] The history of their relationship indicates that the eldest sister and Mr. Momprevil knew each other as friends since 2009, when he was incarcerated. They had regular contact by phone, mail and electronic means.
[20] At the end of 2012, prior to Mr. Momprevil’s statutory release, the eldest sister stopped communicating with him and told him not to communicate with her anymore.
[21] Despite this request, he continued to communicate with her. She blocked his account and changed her number and he responded by creating a new fake social media account and continuing to try to communicate with her. Through Facebook communications, she told him to stop and if he did not, she would report him to the police.
[22] In 2016, she began receiving calls at work from an unknown number. When she answered, she heard Mr. Momprevil’s voice inquiring about her whereabouts. She told him not to call her again. Despite this request, he continued to call from an unknown number, so she transferred her line to her boyfriend’s cellphone and advised her employer. The calls continued.
[23] At the eldest sister’s place of employment, the receptionist would receive calls from Mr. Momprevil, who identified himself as Adam Clarke and demanded to speak to the eldest sister. He was aggressive with the receptionist.
[24] On January 20, 2016, the eldest sister and her boyfriend filed a complaint with the police, and told them that she was scared and did not understand why he continued to contact her when she had told him not to.
[25] A few days later, Mr. Momprevil attended the home of the mother, unannounced and uninvited.
[26] In her reasons for conviction, Justice Bourgeois found that Mr. Momprevil knew that the eldest sister was harassed and that his repeated communications caused her to fear for her safety, which was reasonable in the circumstances given the extensive emails, social media contacts, telephone communications, including at her place of employment, and the attendance at her mother’s residence.
[27] On March 2, 2017, Justice Bourgeois imposed the following sentence: 14 month incarceration (subject to a 209 day pre-sentence custody), mandatory firearms prohibitions pursuant to s. 109 of the Code, and a mandatory ancillary order regarding DNA samples.
[28] Justice Bourgeois also imposed a three-year probation order and Mr. Momprevil was bound by the following conditions:
− Keep the peace and be of good behaviour;
− Report to the probation officer within two working days of his release from custody;
− Attend with the probation officer as required;
− Participate in any counselling or rehabilitative programs as directed by the probation officer;
− Do not associate or communicate in any way, by any physical, electronic or other means or to be in the company of H.A.S. or any witness in this case, i.e. A.Z., L.S.R., A.A.S. and W.A.S.; and
− Do not be within 500 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know these persons to be.
[29] On December 10, 2019, Mr. Momprevil was arrested at 109-1220 Innes Road (the probation office) after he had just met with his probation officer. It is alleged that he breached his probation order and was seen on three occasions in the vicinity of 84 ----Avenue, which is the home of the mother.
[30] Detective Thompson effected the arrest and handcuffed the accused.
[31] At a pre-trial motion, the court admitted Mr. Momprevil’s statements made to Detective Thompson on December 10, 2019.
[32] While Detective Thompson was handcuffing Mr. Momprevil, Mr. Momprevil asked what he was breaching. The detective told Mr. Momprevil that he had breached his probation order and had not maintained a distance of 500 metres from 84 ---Avenue and told him to stop talking. Mr. Momprevil asked again what he breached and again Detective Thompson repeated the breach of being within 500 metres of 84 ----Avenue and to not speak but rather wait to speak to a lawyer.
[33] Then Mr. Momprevil said: “Do you know who lives there?”
[34] Detective Thompson told him to be quiet and that he needed to speak to a lawyer.
[35] Mr. Momprevil then said: “The mom lives there, not the daughters. You are treating me like this because I am black. Call Ottawa Housing for who lives there.”
[36] In the previous pre-trial motion, this court also found beyond a reasonable doubt that the statements that Mr. Momprevil made in his interview with Detective Thompson were given voluntarily.
[37] The court admitted the reasons for conviction in 2016 by Justice Bourgeois with redactions.
[38] At the time of the pre-trial motion, the trial was to proceed by judge and jury. The accused re-elected to judge alone.
[39] In accordance with R. v. Lo, 2020 ONCA 622, 152 OR (3d) 609, at para. 199, a ruling can be revisited later in the proceedings if circumstances change and warrant a reconsideration.
[40] Given that trial is now a judge alone trial, on consent, the court has “unredacted” a portion of page 7 which is now evidence. This evidence refers to the eldest sister’s concern that Mr. Momprevil had served time in the past for partner violence.
Crown’s Position
[41] The Crown submits that the accused knew that 84 ---Avenue was the home of the mother as he had been there in the past when the eldest sister was living there.
[42] In his statement to the police, he acknowledged that 84 ----Avenue was the home of the mother.
[43] There are three witnesses who saw Mr. Momprevil in the vicinity of 84 ----Avenue.
[44] The accused was aware of his conditions of probation and despite that, he failed or refused to comply.
[45] The Crown relies on similar fact evidence of discreditable conduct from the 2016 criminal harassment conviction.
[46] Similar fact evidence with respect to count to count does not rise to the necessary level for it to go to identification.
[47] The Crown submits that it has proven the elements of criminal harassment.
Defence’s Position
[48] Defence argues that the Crown has failed to prove the identification of the accused as the person who was at 84 ----Avenue on September 5, 2019.
[49] Defence counsel argues that the mother assumed it was him. Her daughters were constantly talking about him and had suspicions that he was calling without talking or setting up fake social media accounts.
[50] In addition, the photos taken by the middle sister are of a purple car which she says was the accused’s vehicle, yet the vehicle stopped by the police officer later in November 2019, was a red Mazda.
[51] She also submits that there were many missteps in this case, for example, no investigation took place regarding this incident until much later. All of the family members were usually interviewed together.
[52] The defence submits that identification is the real issue, and the Crown has failed to prove beyond a reasonable doubt that Mr. Momprevil was the individual who was involved in the charged conduct.
Breach of Probation Charges
[53] I will first deal with the breaches of probation charges.
[54] The elements of the offence of breach of probation contrary to s. 733.1 of the Code are:
1 - The accused was bound by a probation order;
2 - The accused failed or refused to comply with the probation order; and
3 - The accused was without reasonable excuse.
Was the accused bound by a probation order?
[55] The Crown filed the probation order dated March 2, 2017, which was filed as an exhibit. The evidence confirms the accused was aware of the conditions of probation because:
He signed the order and was represented by counsel at the time;
The probation officer, Elizabeth Portolese, testified that at each of the numerous meetings she had with the accused, he mainly reported to her unless she was away, otherwise he met with another probation officer;
Starting with their first meeting on April 13, 2018, she went through all the conditions and asked him if he had any questions and discussed the consequences if he did not comply. She also explained her role. She met with him regularly, sometimes once or twice a month. She told the accused about the conditions of the probation order and the non-association condition.
[56] I accept the probation officer’s evidence that the accused confirmed that he understood the conditions and he appeared to understand the condition of non-association.
[57] She confirms that she is bilingual and spoke to the accused in whatever language he chose to speak. For example, if he spoke in French, she would respond in French.
[58] I will now deal with each count on the Indictment.
Did the accused fail or refuse to comply with the probation order?
[59] The count 1 reads that:
On or about September 5, 2019, he failed to comply with a term of his probation order dated March 2, 2017 (“probation order”), namely, not to be within 500 metres of where he knows H.A.S., A.Z., L.S.R., A.A.S. or W.A.S. live, work, go to school or frequent, contrary to s. 733.1(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”);
[60] On September 5, 2019, the mother and the youngest sister were at home at 84 ---- Drive where they both live.
[61] The youngest sister was clearing out her vehicle. She wished to make room in the trunk for their luggage as she and her mother were flying to Lebanon that day for a vacation.
[62] The youngest sister’s car was parked near the garbage bins in the visitors’ parking lot.
[63] She recalls that her mother came out of the home with urgency saying that her middle sister was calling and trying to reach her. She heard her mother yelling “what are you doing here,” “I am going to call the police,” and started chasing who she believed was the accused. The youngest sister saw the back of his head while running away.
[64] While the mother was running out, the mother states that she saw the accused crouched down near the fence and garbage bins and then he got up very quickly and started to run away very fast. He ran along the fence into the trees.
[65] The youngest sister testified that she spoke to one of her sisters or both on that occasion, and was told that the middle sister had seen the accused in the area and that she was worried for her family.
[66] The middle sister stated that on that date she had just picked up her son from her mother’s residence and while driving she saw the accused on Montreal Road. She recognized his car. She saw him turning left on ----Avenue from Burma and was concerned for the safety of her mother and sister.
[67] She took 2 photos of the accused’s car and recognized it as his vehicle.
[68] She could not initially reach the youngest sister but was able to reach the eldest sister.
Analysis
[69] For the reasons that follow, the court finds that the Crown has not proven beyond a reasonable doubt that the accused breached his term of probation on September 5, 2019.
[70] I do not find that the Crown has proven beyond a reasonable doubt that the accused was actually on the 84 ----Avenue property.
[71] The evidence of the mother and the youngest sister of their observations of the man near the fence and garbage bins falls short of proving that it was indeed the accused.
[72] The court has considered the following evidence.
Mother’s Evidence
[73] The mother had only met the accused on two previous occasions. She described him as tall and full body. She had met him when they lived near Queen Mary when he came to visit her daughters.
[74] She knows him by the name “Junior.”
[75] On September 5, 2019, around 3 p.m., the mother had exited her home and was going out to give the youngest sister the phone when she saw the accused near the garbage bins and fence near her house. He had been crouching down and when she saw him, he stood up and she could see his whole body and then he ran away. She saw him by his side and then saw his back as he ran away. She chased him for 2 minutes.
[76] She testified that she was running down the stairs to give the phone to the youngest sister, and she did not expect to see a man beside the fence near the garbage bins.
[77] The mother’s evidence was confusing. She does not recall dates. She does not recall who was present at meetings with the Crown to discuss the case.
[78] When asked in cross-examination if she had not seen him for a long time. She said no, that her daughters would see him in the car, “he came, he left;” “I don’t know when” and “I am always at home.” The court found her evidence, at times, not comprehensible. This is not because she was giving her evidence through an Arabic translator but because she was uncertain with some facts and dates.
[79] Before she was cross-examined on her statement to the police, the interpreter translated the English statement to Arabic and the matter was put over until the next day.
[80] When she spoke to the police, she knew they were investigating Mr. Momprevil and that her daughters were saying they saw him in the neighbourhood.
[81] She admitted that when speaking to the police, the daughters were worried about him being around.
[82] She admitted on cross-examination, that because of the accused’s history with her daughters, she assumed it was him on her property.
[83] She confirmed that he quickly got up from a crouched position - she saw him stand up and run. She repeated that she had recognized him as she had seen him a while ago with the middle sister and recognized him from his height and face. She had seen him a year or two earlier when he spoke to the middle sister. But she told the officer that she had not seen the accused since 2016. She admits that she is not good with dates. She does not know.
[84] There was some confusing evidence from her as to when she met him. She said the first time was when he was with the middle sister in the old home and the second time, when the middle sister was in her home and spoke to him.
[85] At trial, she said he had taken four to five steps before losing sight of him. In her statement to the police, she said it was so fast “1 step 2 step 3 step” and then “he was gone into the woods into the trees.”
[86] She admits when the officer asked her to describe this man’s clothing she could not because it happened very fast. She also could not give a physical description.
[87] I find that the mother was making efforts to provide answers to the questions and trying to be truthful. I have no reason to believe that she would purposely deceive but she is a mother who is very concerned for her daughters who are anxious about Mr. Momprevil’s actions.
[88] She knew her children had many suspicions, but no proof it was him. They were suspicious of actions such as two sets of flowers delivered to the mother’s door on the eldest sister’s birthday, calls with blocked numbers calling the eldest sister, fake social media accounts with photos from the eldest daughter’s wedding.
[89] The family is close and spends regular time with each other. The mother is quite aware of her daughters’ concerns regarding the accused.
[90] In conclusion, the court finds the mother’s evidence confusing and unclear.
[91] I note the warning in Olliffe at para. 37 where the identification evidence is coming from someone who appears to be a credible and convincing witness.
[92] At para. 38, the Ontario Court of Appeal in Olliffe stated that the court should consider whether the witness is acquainted with the accused. At para. 39, the court stated that “the level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence.”
[93] The court has grave concerns regarding her reliability regarding the identification of the man she saw beside the garbage bins near the fence on two basic grounds: her lack of familiarity with him, and the lack of opportunity to see him clearly on that occasion.
[94] More specifically:
She assumed it was Mr. Momprevil as her daughters were telling her that they had many sightings of him in the neighbourhood;
She had only met him on two previous occasions;
She did not have much interaction with him in the past;
She was unable to give the police a physical description of him;
She was unable to tell the police what he was wearing;
She admits that he was crouched down and ran very fast;
She told the police he was gone in 3 steps and at trial it was 4 to 5 steps (although this is a minor inconsistency that on its own would not weigh greatly in my analysis);
She is confused regarding her last time meeting him, either it was 1 or 2 years ago or as far back as 2016;
Her description of him at trial is very basic. She identified him in court but he was in the prisoner box and other than him, there was court staff, the constables, and counsel. I therefore give no weight to her in-court identification; and
She assumed that it was Mr. Momprevil as she knew that the police were investigating him and her daughters were convinced that it was him.
[95] For all those reasons, the court finds the mother’s evidence not to be reliable.
Youngest sister’s evidence
[96] The youngest sister was at 84 ----Avenue when the mother saw this man near the fence and garbage bins.
[97] She was clearing out the trunk of her car which was parked in the visitor’s parking spot. She only saw the back of his head as he ran away. Her mother had come down to tell her that her sister as trying to reach her on her phone and when her mother came down, she shouted at the man near the garbage bins.
[98] She has known the accused since she was 11 or 13 years old. She met him on three occasions in total in her life. The first time was when she was young on a basketball court. The second time in January 2016, when Mr. Momprevil wanted to speak to her and she wanted to end the conversation and go inside. The third time was on September 5, 2019.
[99] During the September 5, 2019 incident, she said he was wearing dark clothes. At trial, she said she saw the side of his face but told the officer that she only saw the back of his head.
[100] She was scared and worried and did not know his intentions. She was also scared for her mother and not sure why he kept contacting them when they said they did not want contact. This makes her anxious and stressed. She often takes uber/taxis, takes long routes, keeps curtains closed and is less active on social media.
[101] Again, the court is aware that eyewitness identification evidence is inherently unreliable and can be difficult to assess as it is often deceptively reliable because it comes from a credible and convincing witness. See R. v. Goran, [2008] ONCA 195 para 19:
… Studies have shown that triers of fact place undue reliance on such testimony in comparison to other types of evidence. As a result, many wrongful convictions have resulted from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses have identified the same person.
[102] I do not accept that the youngest daughter had a good view of this man for the following reasons:
She saw the back of his his when he was running away:
She admitted that she assumed it was him;
She had been looking at her mother who was panicking about phone calls from her sister;
At trial, she said that she saw the side of his face, but this is inconsistent with the statement she gave the police when she said she saw the back of his head;
She had only met the accused twice before, once many years ago when she was young and the second time over 3 years ago for 10 to 15 minutes;
She saw him for only 3 seconds and then she saw him running away for 7 to 10 seconds;
She was actually in her car with the window closed when she said she saw him so there was an obstruction in the form of a window and she would not have a good view of the man; and
She did not tell the probation officer that she saw him, but only that her mother saw him.
Middle sister’s evidence
[103] There is also some evidence that the middle sister took photos of the accused in his vehicle on that day in the vicinity of 84 ----Avenue.
[104] The middle daughter has taken two photos that she purports to say is the accused’s vehicle. It is not the same vehicle that Constable Petepiece said he observed the accused in on November 28, 2019, which was a red Mazda.
[105] There is no date on the photos.
[106] She says that she saw him in the neighbourhood turning from -----Avenue.
[107] The middle sister has known the accused for over 6 years and was in a better position to identify the accused than her mother or the youngest sister.
[108] She had met him in person over 30 times and at times would be with him for more than 10 minutes. She described him as a bit tall, on the bigger side and sometimes sporting a beard.
[109] She participated in the first trial in 2016. But she has been a reluctant witness in these proceedings and has not provided a statement nor participated in an audio or video recorded statement.
[110] She was unwilling to come forward earlier.
[111] She provided her evidence only later in the investigation and with her sisters present.
[112] She participated in a police interview in a phone call with Detective Thompson on January 1, 2020, (3 weeks after the accused’s arrest and 3.5 months after the September 5, 2019 incident) with her 2 sisters. The youngest sister had called the detective to say that the middle sister wanted to speak to him. The middle sister spoke about the September 5 and September 17, 2019, incidents. All three sisters were on the phone for that conversation with Detective Thompson.
[113] The Detective took notes from what she said: 8 lines about the September 5, 2019 incident and 6.5 lines about the September 17, 2019 incident.
[114] The middle sister told the detective that she would provide a written statement but never did. She did not participate in an in-person audio or videotaped interview. The notes from that meeting were generated on the system on January 7, 2020 (6 days after the conversation).
[115] The court has the following concerns regarding the evidence of the middle sister:
The middle sister’s photos were not dated nor could she testify of the date, rather she assumed that they were taken when he was allegedly at her mother’s home;
The vehicle is not the same vehicle that was stopped by Constable Petepiece;
She was a reluctant witness;
Her statement regarding this incident was given months later;
She never gave a formal statement (audio or video);
She was interviewed only in the presence of her sisters;
The court is concerned with the accuracy of notes of the January 1, 2020 phone meeting as they were taken almost a week after the interview and the court questions whether they accurately reflect the contents of the telephone conversation;
No detailed descriptions provide by any of the complainants; and
She assumed it was the accused.
[116] Therefore, count 1 is dismissed.
[117] Given that this charge is tied with the criminal harassment charge, count 3 on the indictment, the Crown has not proven beyond a reasonable doubt that the accused was on 84 ----Avenue and harassing or besetting or watching the mother and youngest sister’s residence.
[118] Therefore, count 3 is dismissed.
[119] Regarding Count 2 which reads:
On or about November 28, 2019, he failed to comply with a term of his probation order, namely, not to be within 500 metres of where he knows H.A.S., A.Z., L.S.R., A.A.S. or W.A.S. live, work, go to school or frequent, contrary to s. 733.1(1) of the Code;
[120] With respect to the allegation that occurred on November 28, 2019, at 10:37 p.m., Constable Petepiece spotted a red Mazda 6 drive from ------Avenue and turn right on Burma. He noted its Quebec licence plate and checked it on his computer. The system notified him that the the owner of the vehicle was a suspended driver. The officer lost sight of him. The focus was on his plate and he did not know who was driving.
[121] The officer completed a U-turn to follow the vehicle.
[122] However, it was six minutes later, at 10:33 p.m., that Constable Petepiece eventually stopped the accused on a traffic stop at the corner of Ogilvy and Bathgate. The accused was the sole occupant of the vehicle at the time of the traffic stop.
[123] The period of six minutes is not accounted for. The court is not satisfied that identification has been proven beyond a reasonable doubt and that this count has been proven beyond a reasonable doubt
[124] Count 2 is dismissed.
Criminal harassment charge
[125] The elements of the offence as set out in R. v. Kosikar (1999), 1999 CanLII 3775 (ON CA), 178 D.L.R. (4th) 238 and applied to this case are as follows:
Did Mr. Momprevil engage in conduct set out in count 4 in the indictment?
Were the complainants harassed, defined as being tormented, troubled, worried, continually or chronically plagued or badgered?
Did Mr. Momprevil know the complainants were harassed, or was reckless or wilfully blind as to whether the complainants were harassed?
Did his conduct cause the complainants to fear for their own safety, either physically or psychologically well-being?
Were the complainants’ fear, in all the circumstances reasonable?
[126] By way of background, the court has the extensive reasons of Justice Bourgeois where she outlines the history of the relationship between the accused and the eldest sister who were in a relationship from 2009 to 2012.
[127] I have heard the evidence of all four complainants regarding their desire not to be contacted by the accused.
[128] A single incident in the right context can cause this feeling of being harassed. See R. v. Kosikar.
[129] Turning to the last count on the indictment, Count #4 which reads:
That between June 1, 2019 and September 17, 2019, did without lawful authority and knowing that another person, namely A.A.S., was harassed or recklessly as to whether the person was harassed, engage in threatening conduct or besetting or watching the place of residence of A.A.S. and caused the said A.A.S. to reasonably fear for her personal safety and the safety of her family, contrary to s. 264(3) of the Code.
[130] Identification is an issue.
[131] The middle sister’s evidence is as follows: sometime in the winter, she saw someone in her backyard and one of her friends went out to him. In her testimony, she stated that she assumed it was the accused as “who else would be in her backyard?”
[132] She was not able to get a good view of him but her balcony does have some lighting.
[133] The court will not enter a conviction on this incident as there are no details or identification to convict the accused.
[134] She also recounts that on September 17, 2019, she was picking up her son from her mother’s place and noticed that the accused was following her. She saw him in the rear-view mirror. She took a video of him. She maneuvered some detours and eventually lost him. She had her son in her car and was very worried about her safety and that of her son.
[135] She took a 14 second video of a purple vehicle that she said was the accused vehicle driven by him. The video is not helpful as it does not show who is in the vehicle.
[136] As stated in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 at para. 16, “A tape, particularly if it is not challenged as to its accuracy or continuity, can provide the most cogent evidence not only of the actual words used but in the manner in which they were spoken.” However, in this case, the videotape is disjointed, unclear and not detailed nor focused as to who the driver of the vehicle was.
[137] The courts have warned triers of facts with respect to identification evidence. At para. 19 in Nikolovski, the Supreme Court stated:
… The courts have long recognized the frailties of identification evidence given by independent, honest and well-meaning eyewitnesses. This recognized frailty served to emphasize the essential need to cross-examine eyewitnesses. So many factors come into play with the human identification witness. As a minimum it must be determined whether the witness was physically in a position to see the accused and, if so, whether that witness had sound vision, good hearing, intelligence and the ability to communicate what was seen and heard.
[138] In cross-examination, she admitted that her mother was in Lebanon and she would not have babysat her grand-son but responded that he was picked up at the bus stop there. The grandmother of the child was in Lebanon for 1.5 months and it was odd that the middle sister would pick her son up there.
[139] The middle sister may be confused regarding her dates.
[140] Again, there was no immediate investigation after the event. All interviews were done with all sisters present (except the middle sister only attended the January 1, 2020 phone call).
[141] The interviews took place months after the incident and the 2 meetings in 2021 with the Crown and detective involved all the complainants.
[142] There is no question that the family was in high alert about the comings and goings of Mr. Momprevil. They had many discussions of the unusual events with some of them attributed to the accused. The family often assumed unexplained events were caused by the accused.
[143] It is helpful at this point to provide some context of what the family was experiencing.
[144] The youngest sister was the spokesperson for the family. She has taken the gauntlet and had contact with the probation officer on a regular basis.
[145] When he was out of custody, the youngest sister would speak to the probation officer two or three times per month. She would call to check in. She gave the youngest sister’s contact information if she wanted to express her concerns or worries. She would contact the probation officer from time to time, when incidents happened. There were 18 contacts from April 2018 to December 2019.
[146] In June 2018, she was getting weird telephone calls from an unknown caller.
[147] In September 2018, she called the probation officer and told her that a friend was receiving social media messages.
[148] In December 2018, she told the probation officer that the phone calls were from a private number, she would say hello and they would hang up.
[149] On September 23, 2019, she called the probation officer and told her that Mr. Momprevil breached his conditions daily.
[150] This family was obviously showing signs of anxiety at this period of time, when the accused’s reporting period was coming to an end.
[151] To say that he was breaching his conditions daily was very much of a stretch.
[152] She said that he was creating fake social media accounts, driving in the neighbourhood, and that she had videos of him breaching his conditions.
[153] She received the video from the youngest sister when she was in Lebanon.
[154] She was in touch with the probation officer when she received the video. She was returning to Canada and she wanted a patrol officer in the area. Her mother was staying in Lebanon.
[155] On November 26, 2019, during a conversation with the probation officer, the youngest sister said that they had not seen Mr. Momprevil for some time. She reminded her that his reporting period was ending December 11, 2019.
[156] The court finds that the count has not been proven beyond a reasonable doubt. The court is guided by the factors set out in para. 19 of Nikolovski.
[157] On this occasion, the middle sister did not have a good and clear vision as she was driving her own car; her fear, excitement and concern for her safety and that of her son may have affected her ability to see the accused clearly; this was obviously a terrifying experience for her as she believed she was being followed by the accused and this would have affected her ability to perceive clearly; and she had a bias and a perception that Mr. Momprevil was breaching his conditions (both from her own observations and those recounted to her by her family);
[158] Also:
There was no date of the video;
She was not interviewed about this incident until months later;
In the meantime, she had spoken to her sisters and mother about this;
The car was purple whereas Mr. Petepiece says he saw the accused in a red Mazda; and
The offence has not been made out in the dates shown in the indictment.
[159] Accordingly, all the charges are dismissed.
[160] On consent, the parties agree that Mr. Momprevil will enter into a one-year peace bond prohibiting him from contacting the complainants.
Justice A. Doyle
Date: December 23, 2022
COURT FILE NO.: 20-RH19788
DATE: 2022/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: HIS MAJESTY THE KING V. BERNARD MOMPREVIL
BEFORE: Justice A. Doyle
COUNSEL: Sonia Beauchamp, Counsel for the Crown
Natasha Calvinho, Counsel for the accused
HEARD: December 13, 14, 15, 16, 19 and 21, 2022
TRIAL DECISION
Doyle J.
Released: December 23, 2022