COURT FILE NO.: 22- 15524 DATE: 2023/06/05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Guy Coté Accused

COUNSEL: Anthony Does, for the Crown Mr. Coté, Self-Represented

HEARD: April 3-6, 11-14, 17-21, 2023 Oral judgment given May 17, 2023

REASONS FOR DECISION

SOMJI J

I. Overview

[1] Between February 9 and 23, 2022, there was a spree of unlawful entries into utility rooms of 15 residential and commercial buildings in downtown Ottawa where the suspect would shut off the electrical and/or mechanical systems in the buildings. The suspect would not steal anything, but the offences disrupted the lives of many residents leaving them in several instances without power or access to certain utilities. Fortunately, no one was injured, but serious harm could have occurred because the electrical systems, fire alarm, fire suppression, and security systems were disrupted. In almost all instances, building maintenance crews, acting alone or with assistance from an electrician or Ottawa Hydro, were able to restore the power within 24 hours. Following the incidents, many of the building owners were required to repair damaged doors and incur costs for additional locks and measures to secure their electrical and mechanical rooms from future vandalism.

[2] On February 23, 2022, the accused, Mr. Guy Charles Coté, was caught in the act of breaking into 1600 Scott Street and arrested by police. Based on the video surveillance from the earlier incidents, the police identified him as the suspect responsible for the spree of break and enters. Mr. Coté was subsequently charged with 57 counts of property-related offences.

[3] At the start of trial, the Crown withdrew the following counts: 9, 10, 11, 15, 16, 23, 24, 25, 26, 28, 29, 31, 32, 33, 34, 47, 48, 49, 50, 51. The trial proceeded on the remaining counts related to 12 premises which are summarized based on the location of each occurrence as follows:

• Counts 1, 2, and 3: 400 Slater Street - February 16, 2022, charges of break and enter, mischief, and possess instruments for break and enter; Occurrence Report #22-39966
• Counts 4 and 5: 350 Albert Street - February 9, 2022, charges of break and enter and mischief; Occurrence Report #22-802220
• Counts 6, 7, and 8: 70 Gloucester Street - February 12, 2022, charges of break and enter and mischief; Occurrence Report #22-36699
• Counts 12, 13, and 14: 350 Laurier Avenue - February 14, 2022, charges of break and enter, mischief, possess instruments for break and enter; Occurrence Report #22-39263
• Counts 17 and 18: 150 Slater Avenue - February 15, 2022, charges of break and enter and mischief; Occurrence Report #22-39766
• Counts 19 to 22: 101 Queen Street - February 16, 2022; charges of break and enter, mischief; Occurrence report #22-41623
• Counts 30, 56, and 57: Two locations at 50 Rideau Street - February 22-23, 2022, charges of break and enter and mischief; Occurrence Reports #22-46817and #22-803052
• Counts 35 and 36: 200-250 Lett Street - February 15, 2022, charges of break and enter, mischief; Occurrence Report #22-802732
• Counts 37 to 40: 141 Cooper Street - February 22, 2022, charges of break and enter, mischief, possess instruments for break and enter, obstruct enjoyment of property; Occurrence Report #22-46299
• Counts 41 to 43: 235 Somerset Street – February 23, 2022, charges of break and enter possess instruments, mischief; Occurrence Report #22-46329
• Counts 44 to 46: 1600 Scott Street – February 23, 2022, charges of break and enter, mischief to property; Occurrence Report #22-47072
• Counts 54 and 55: 238 Besserer Street – February 16, 2022, charges of break and enter and mischief; Occurrence Report #22-802685

[4] The Crown takes the position that there is sufficient circumstantial evidence to establish that Mr. Coté is responsible for breaking and entering into the premises and engaging in mischief to property. The circumstantial evidence includes video footage which shows a suspect inside the premises and in many cases tampering with the utility systems as well as the testimony of the civilian witnesses who discovered and observed damage to the utility systems just after the perpetrator was in the premises. In addition, the Crown argues it is visually clear in most instances from the video footage itself that the intruder is Mr. Coté, and where it is unclear, the court can rely on the similar act evidence discussed below to establish his identity.

[5] Mr. Coté chose to represent himself at trial. He did not call any evidence. He argues that the court should be cautious in finding him guilty on all the occurrences. He argues that in many instances the intruder is not seen in the video footage directly interfering with utility systems. In addition, the video footage is sometimes grainy, and one cannot get a clear visual of the person’s face, especially when the intruder was wearing a mask. He also highlights that nothing was ever stolen, and nobody was injured during these break and enters.

[6] At the end of trial, the Crown submitted that there was insufficient evidence on counts 3, 27, 52, and 53 and invited the court to dismiss those counts. I agree with their assessment in this regard, and the accused is acquitted of counts 3, 27, 52, and 53.

[7] With respect to the remaining counts, upon review of the evidence as a whole, I find the accused is guilty of counts 1, 2, 4, 6, 7, 12, 13, 17, 18, 19, 20, 22, 35, 37, 38, 39, 40, 41, 43, 54, 55, 56, and 57. My reasons for these findings can be summarized as follows:

• For each of these counts, the Crown called building staff or residents who explained that on the date and time in question, the power or utility system had been turned off. When staff inspected the electrical and mechanical rooms, they observed that brakers, switches, and levers had been turned off and in some instances, there was damage to the entry doors. This evidence was corroborated by the police who attended the scene and took photos of the damage to the property and the various levers and switches that had been turned off.
• For each of these counts, the building staff or resident explained that the building was not publicly accessible, and residents required a key or fob to enter the buildings.
• For each occurrence, the Crown played video footage seized from the security cameras at the various premises showing an intruder in the building. The videos showed the intruder sometimes tampering with the utility systems in the parking garages or alternatively, heading towards areas where the utility systems were located, and within a reasonable time thereafter, it was reported that the power or utility system was shut off. On this basis, one can reasonably infer the intruder on the footage was responsible for the mischief.
• In most instances, Mr. Coté could be directly identified in the video footage. Where I could not rely alone on the high quality video footage image to identify Mr. Coté, I found based on the similar act evidence and the various identification markers such as clothing and shoes, that the intruder in the video was in fact Mr. Coté.

[8] Below I provide reasons for my findings as they relate to each occurrence. Before doing so, I have briefly set out the fundamental legal principles governing a criminal trial, the requisite elements to be proven for the offences charged, and a summary of the similar act ruling.

II. Fundamental Legal Principles

[9] The primary and overarching principle in every criminal trial is the presumption of innocence. Every person accused of criminal conduct has the fundamental right to be presumed innocent of every count on the indictment.

[10] The presumption of innocence stays with the accused throughout the trial and is only displaced upon the Crown proving each count beyond a reasonable doubt.

[11] The burden of proof in a criminal trial is on the Crown and does not shift. The accused is not obliged to prove anything.

[12] Proof beyond a reasonable doubt is a very high legal standard. It is higher than a balance of probabilities yet less than proof to an absolute certainty. Doubt is based on reason and common sense. Doubt is logically derived from the evidence or absence of evidence.

[13] To obtain a conviction, the Crown must go beyond establishing probable or likely guilt. However, it is nearly impossible for the Crown to prove anything with absolute certainty, and they are not required to do so. Ultimately, I must be certain that the accused committed the offence to convict him on any count. If I am not certain, I must acquit.

[14] In assessing the evidence at trial, I must consider all the evidence adduced at trial and direct my mind to making the necessary findings of fact based on the issues to be decided.

[15] I must assess the credibility and reliability of each Crown witness to arrive at a proper verdict. There is no magic formula in determining whether a witness is telling the truth: R v McEwan, 2022 ONSC 4298, at para. 8. Some of the factors which I have considered in this case include:

• Inconsistencies in the witness evidence;
• Whether the witness was able to make accurate and complete observations about the events as well as the circumstances and condition of the witness at the time of their observations;
• Whether the witness has a bias or motive to give evidence favourable to one side;
• Whether the witness had a good memory of the events;
• Whether the witness seemed to be reporting what s/he saw or heard or simply putting together an account based on information obtained from other sources including video footage they may have observed or reports they received from building staff; and
• Whether the evidence was consistent with the exhibits filed including photographs and video surveillance.

[16] Inconsistencies on material matters about which an honest witness is unlikely to be mistaken may demonstrate a carelessness with the truth that should concern the trier of fact: R v A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 13.

[17] While the demeanor of a witness is a relevant factor for consideration, it is not an exclusive determinant of credibility or reliability: R v A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-132.

[18] Finally, a trial judge must provide sufficient reasons to permit effective appellate review. The trial judge’s reasons must demonstrate consideration of the entire evidence, an appreciation of the weaknesses in the complainant’s evidence, an understanding of the position of the defence, and a proper application of the relevant legal principles including the reasonable doubt standard: R v J.J.R.D. (2006), 215 C.C.C. (3d) 252, at para. 2 (Ont. C.A.). However, in composing reasons for judgment, a trial judge is not required to discuss all the evidence or to answer every argument advanced by counsel: R v A.A., at para. 120.

III. Elements of the Offences for Which the Accused is Charged

[19] In addition to date, time, jurisdiction, and identity of the accused, the Crown must prove beyond a reasonable doubt the essential elements of the offences with which Mr. Coté has been charged.

[20] To establish the offence of break and enter with intent, the Crown must prove beyond a reasonable doubt that the accused (1) broke into a place; 2) entered that place; and 3) intended to commit an indictable offence in the place he broke into and entered: Section 348 Criminal Code, R.S.C. 1985, c. C-46; David Watt, Watt’s Manual of Jury Instructions, loose-leaf, 2nd ed. (Toronto: Thomson Reuters, 2023). Under s. 348(1)(a), the Crown need only prove that the accused intended to commit an indictable offence. If the accused break and enters and commits an indictable offence, then they act contrary to s. 348(1)(b) instead of 348(1)(a).

[21] A person is deemed to have broken and entered a place if they obtain entry by (1) a threat, by artifice, or by collusion with a person within, or (2) if they enter a place without lawful justification or excuse, by a permanent or temporary opening: Criminal Code, s. 350(b). A finding of guilt for a breaking and entering does not require that an accused physically break or damage a door or entry point. Entering an underground parking garage of a building by following a tenant’s car constitutes obtaining entrance into a building by artifice: R v Leger, [1976] 31 C.C.C (2d) 413 (Ont. C.A.).

[22] Section 348(2)(a) of the Criminal Code creates a presumption that, in the absence of evidence to the contrary, evidence that an accused broke and entered a place, or attempted to break and enter a place, is proof that he broke and entered the place, or attempted to do so, with intent to commit an indictable offence therein.

[23] Where I make a finding of guilt under s. 348(1)(a), I rely on the presumption of intent to commit an indictable act under s. 348(2)(a) because I have not been provided with any evidence to the contrary that Mr. Coté did not intend to commit an indictable act.

[24] Pursuant to s. 430(1) of the Criminal Code, a person is found to commit mischief where the person willfully:

a) Destroys or damages property; b) Renders property dangerous, useless, inoperative or ineffective; c) Obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or d) Obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

[25] Proof of actual destruction or damage to property is required for paragraph (a) but not (b). Property is considered destroyed or damaged where there is evidence that the property is at least temporarily rendered less suitable for its intended purpose or that the usefulness or value of the property was impaired: R v Quickfall, [1993] 78 C.C.C. (3d) 563 (Q.C. C.A.).

[26] Willful behaviour includes recklessness: Criminal Code, s. 429; see also R v Muma, [1989] 51 C.C.C. (3d) 85 (Ont. C.A.); R v Toma, 2000 BCCA 494, [2000] 147 C.C.C. (3d) 252.

[27] The elements of the offence of possession of break-in instrument, contrary to s. 351(1) of the Criminal Code are:

a) Possession by the accused of the instrument specified in the indictment; b) That the instrument was suitable for the purpose of breaking into any place, motor vehicle, vault or safe; and c) Knowledge that the instrument has been used or is intended to be used for the purpose of breaking into any place, motor vehicle, vault or safe.

IV. Analysis

The Investigation of the Break and Enters and Similar Act Ruling

[28] Detective Robinson has been with the break and enter unit of the Ottawa Police for over nine years. In February 2022, she was responsible for investigations in the Ottawa downtown core. On January 21, 2022, she was first alerted to a break and enter where a suspect had entered a building, pulled on a fire alarm, interfered with a utility system, but did not steal anything. She then investigated continued reports of break and enters into buildings in the downtown core involving the same pattern of behaviour, namely the suspect gaining unlawful entry into the building and interfering with utility systems but not stealing any items. Det. Robinson collected the security video footage from the various premises and observed similarities in the suspect’s dress and behaviour. While she was very confident that it was the same person responsible for all the break and enters, she could not confirm who the person was. It was not until February 16, 2022, following a report of a break and enter at 400 Slater Street, that the suspect responsible looked directly into one of the security cameras, and she recognized the person to be Mr. Coté, with whom she had dealt with in the past.

[29] As the police investigation continued, so did the break and enters. On February 23, 2023, the police received a call from the security guard at 1600 Scott Street stating that they had observed an intruder on the security camera in the parking garage interfering with the fire suppression system and tampering with switches for garage gates. The security guard informed police that the suspect was now situated in the building lobby. Cst. Dodgson attended 1600 Scott Street and arrested the suspect for a break and enter into that building. The suspect was identified as the accused, Mr. Coté.

[30] Following the arrest, Cst. Barahona photographed the accused as well as his shoes and clothing. At the time, the accused was wearing a black hoodie with the logo “Never Enough.” This same hoodie is seen being worn by the suspect on the video footage of the break and enters at 50 Rideau Street, 141 Cooper Street, and 235 Somerset Street.

[31] At the time of the arrest, the accused was also wearing a black coat with a small white logo on the front chest and black shoes with white soles. The suspect is seen wearing this coat at multiple occurrences, including 238 Besserer Street, 150 Slater Street, 350 Laurier Avenue, and 200-250 Lett Street. The suspect is seen in the footage of all of the break and enters wearing black shoes with white soles.

[32] Det. Robinson met with the accused the day after the arrest and testified that she observed that at the time of arrest, Mr. Coté was clean shaven and largely bald whereas at trial, Mr. Coté had more head and facial hair. Nonetheless, she was satisfied that Mr. Coté could be identified on the video footage for some of the premises where his face was visible.

[33] One of the principal issues in this case is the identity of the accused.

[34] At the close of the Crown’s case, I ruled that the cumulative effect of the similarities in the way the acts were carried out, the date and proximity of the acts to each other, and the modus operandi of the acts – to interrupt utility systems – indicates a high degree of similarity respecting how the acts were carried out. This high degree of similarity is sufficient to establish the objective improbability of coincidence: R v Coté, 2023 ONSC 2399.

[35] I found the similarities between the occurrences included the following:

• Proximity of time and place: All of the occurrences took place in the downtown core of Ottawa within a radius of approximately three kilometres. Most of the occurrences took place within several blocks of each other. In addition, all the occurrences took place over a period of less than two weeks between February 9 and 23, 2022.
• Number of occurrences: There were 12 occurrences of forced or unlawful entry into a commercial or residential tower/building.
• Similarity in detail and circumstances:
  • In every occurrence, video footage shows that upon entering the building or parking garage, the suspect moves in the direction of basements or parking garages where switches or panels for utility systems are located. In most cases, the suspect looks for and tries to access doors to utility rooms where such items are located.
  • For most, but not all occurrences, the suspect is seen on the video surveillance reaching up and tampering with utility switches, boxes, panels, or with fenced areas where such utility systems are located. These systems provide some form of utility to the building including mechanical systems for operating garages. This tampering is seen in the video footage of the following premises: 400 Slater Street; 350 Albert Street; 530 Laurier Avenue; 150 Slater Street; 200-250 Lett Street; 1600 Scott Street; and 238 Besserer Street.
  • For each occurrence, civilian witnesses gave evidence that within a very short time period of the suspect’s entry into the building, they received reports from staff or residents that that the utility systems were shut off and steps were or had to be taken to bring the systems back into operation.
• Distinctive features
  • Modus operandi - In each occurrence, the suspect is reported to have only tampered with utility systems and not stolen any items. Detective Robinson testified that in the thousands of property investigations she has conducted in the last nine years (530 in 2022 alone), she has never investigated a break and enter suspect whose modus operandi was to tamper with utilities. In all the break and enters she has investigated, the suspect’s intention had been to obtain some monetary gain through theft of property. I found this to be a distinct feature of these acts.
  • The twirl – At seven of the twelve premises, the suspect is seen on the video footage twirling around. These twirls occur randomly. The suspect is seen walking in one direction, turning full circle once or few times, and then walking again. This twirl is seen on video footage at 530 Laurier Avenue, 150 Slater Street, 101 Queen Street, 250- 252 Lett Street, 325 Somerset Street, 70 Gloucester, and at 50 Rideau Street.

[36] Based on these similarities, I found that the Crown could rely on the similar act evidence to establish the identification of Mr. Coté at each of the other occurrences. The only exception was the occurrence at the Rideau Street parking garage.

Counts 45 and 46: Occurrence Report #22-47072 – February 23, 2022, 1600 Scott Street

[37] On February 23, 2022, Brent Selles was the Operations Manager for Holland Cross and managed their buildings located on Scott Street. These buildings included the main building at 1620 Scott Street as well as two towers at 1600 Scott Street (collectively “1600 Scott Street”). The buildings were occupied by a variety of commercial tenants including law firms and government agencies. His tasks included overseeing the operation of the entire facility, including the mechanical, HVAC, and electrical systems in the buildings.

[38] On February 23, 2022, Mr. Selles received a call at around 7:50 p.m. from the on-call operator of a service company engaged to monitor various utility switches for water supply, fire suppression, loss of power to fire suppression, and low temperatures at 1600 Scott Street. The on-call operator informed Mr. Selles that he had gone down to the parking garage to check the switches and saw various tampers. Mr. Selles referred to the word “tamper” as a situation where something on a valve or device is moved or disconnected suggesting that it has been “tampered” with. Mr. Selles explained that when tampers occur the utility/system is not entirely shut off, but there is enough interference with the system that it triggers an alarm to the monitoring company. For example, if a valve is partially rotated on a fire suppression system, that would be a tamper and would trigger an alert to the monitoring company even though the valve would have to be fully rotated to turn off the entire system.

[39] Mr. Selles attended at 1600 Scott Street and went to the parking garage where he observed that 12 out of 15 systems had been tampered with. In particular, Mr. Selles observed tampers with:

• Domestic water for towers and retail;
• Fire suppression;
• Two or three exhaust fans turned off;
• Two or three disconnects of overhead doors for garages; and
• Disconnect for power to braker panel which provided power to some lights and heat trace equipment in the garage.

[40] Mr. Selles observed that in many instances, the valves had been partially turned but the systems were not entirely shut down. Consequently, the tenants were not directly impacted. However, it did take him and the on-call operator one-and-one-half hours to restore all the systems. Mr. Selles then left the premises between 9:15 and 9:30 p.m. On the following day, Mr. Selles returned to review the security footage from the previous day. On the footage, he observed an individual in the parking garage tampering with the various systems just shortly before he received the call from the service company. He compiled portions of the footage and provided it to the police with a report he prepared.

[41] The video footage was reviewed in court. It shows a person walking around in the parking garage as early as 7:21 p.m. The person is seen tampering with switches for garage doors, water valves, and switches with exhaust fans. While there were utility systems in various locked rooms, Mr. Selles reported the utility systems therein had not been accessed. About two hours later, at 9:58 p.m., the suspect is seen at the front entrance of the building trying to enter the building. Mr. Selles explained that there are magnetic locks at the top of the doors and if you pull hard enough you can open the door. Property management has since put mechanisms in to make it more challenging to open the door in this manner. The suspect is then seen in the lobby trying to open various doors and later seen returning to the vestibule where he remains until approximately 10:30 p.m. The suspect is seen on the video footage being spoken to by the security guard and then arrested by the police.

[42] In addition to Mr. Selles, the Crown called Mr. Raj Singh who was working as a security guard at 1600 Scott Street on the day in question. Mr. Singh’s testimony corroborated the testimony of Mr. Selles as well as the video footage. Mr. Singh testified that his job was to keep an eye on the security cameras and do hourly patrols of the premises. He was on patrol when he received notice from a maintenance manager that the sensors for the fire alarms had been triggered. When he returned to the camera room, he observed on the video footage that a suspect had been in the garage interfering with some of the sensors to the sprinkler system. Later, he observed someone enter the lobby and park himself there. He informed the person that they had permission to stay there given it was cold outside, which is what he usually does when people take shelter in the lobby. He then realized upon reviewing the footage that the person in the lobby was the same suspect who had been in the building earlier, and he called the police.

[43] Constable Dodgson arrived at the scene about three minutes later. Constable Dodgson reviewed video footage shown to him by Mr. Singh of a suspect in the garage earlier seen tampering with switches. Constable Dodgson was satisfied based on the still photo images shown to him by Mr. Singh and his own observation of the person in the lobby that it was the same person. Constable Dodgson spoke to the person in the lobby who identified himself as Mr. Coté. Based on the information provided to him by Mr. Singh and what he had viewed, Cst. Dodgson arrested Mr. Coté for break and enter into 1600 Scott Street. Constable Dodgson also recalled seeing a broadcast from Det. Robinson that there were reasonable and probable grounds to arrest Mr. Coté for numerous break and enters and Cst. Dodgson also arrested Mr. Coté on those offences. For safety reasons, he advised Mr. Coté that he would review those other charges with Mr. Coté once he was secured in the vehicle. Constable Dodgson testified that Mr. Coté was wearing several layers of clothing including a sweatshirt that stated, “Never Enough” and black shoes with white soles. Constable Dodgson testified that the black shoes with white soles had been referred to as identification markers for Mr. Coté in Det. Robinson’s broadcast.

[44] Based on the evidence of Mr. Singh, Cst. Dodgson, and the video footage, I am satisfied beyond a reasonable doubt that the intruder in the garage responsible for the mischief to the utility systems is same person later seen forcefully entering the front entrance and lying in the lobby and that the person is Mr. Coté.

[45] As stated in R v Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 when the court is relying on circumstantial evidence to establish guilt, there isn’t necessarily a clear line between what is speculation and what is a reasonable inference: Villaroman at para 43. When assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. These other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, and not on speculation: Villaroman at para 43. While the Crown may need to negative these reasonable possibilities, it does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.” Villaroman at para 43.

[46] Based on the evidence of the civilian witnesses and the video footage observed, I am satisfied beyond a reasonable doubt that Mr. Coté entered into the building at 1600 Scott Street in the early evening of February 23, 2022, and tampered with the utility systems. While Mr. Coté is not seen tampering with each and every utility switch in the garage, given the close proximity between the time he is seen in the garage on the video footage and when the damage is reported and observed, I find there is sufficient circumstantial evidence to establish that Mr. Coté was responsible for the mischief to the utility systems.

[47] I find Mr. Coté guilty of counts 44, break and enter into 1600 Scott Street with intent to commit an indictable offence, and counts 45 and 46, mischief to property by willfully interfering with the fire suppression, garage exhaust systems, and sensor cables to garage doors owned by Holland Cross.

Counts 1, 2, 3: Occurrence Report #22-39966 – February 16, 2022, 400 Slater Street

[48] On February 16, 2022, Daniel Lapointe was working as the superintendent at 400 Slater Street. While in bed at around midnight, he received a call on his pager from a tenant that the power had gone off. Mr. Lapointe thought it was unusual for the building’s power to be off because he could see that the street lights were on. Mr. Lapointe headed down to the electrical room at Level A of the parking garage. The door to the electrical room, which is usually locked and accessible only by staff, was open. He observed that every switch inside was off, including some 600 volt switches, that provided lights and heat to the building. He also discovered that switches for hot water and for circulation pumps located in the garage were turned off. As a result, there was no heat, hydro, or water for the tenants occupying the 321 units in the building. In addition, Mr. Lapointe observed that the security cameras in the building had been turned off.

[49] Mr. Lapointe reviewed the photographs taken by Cst. Ryan Smith and testified to the following observations he made:

• Damage marks to the door to the electrical room;
• Electrical panels had been switched off;
• An air conditioner was pushed out of the window;
• Circulation pumps in the water pump room had been turned on and the door was wide open whereas it was typically locked;
• Switches to domestic water, which supplies the taps and toilets for the tenants, had been turned off and the door to the room was wide open;
• Switches to the fire suppression system were turned off meaning one could not use the fire hose in the building because no water pressure was available;
• Fire pump at level E had been interfered with; and
• Switches for the fans in the garage had been turned off.

[50] Following his arrival in the garage, Mr. Lapointe spent the next several hours troubleshooting the switches to gradually restore power. The following day he called an electrician to check on things. Property management hired a locksmith to install new bolts on the various doors to provide added security. Mr. Lapointe was not aware of the precise costs of the servicing and repairs. He confirmed that nothing was stolen, and the damage was limited to the lack of access to utilities.

[51] Mr. Lapointe reviewed the security footage from the evening of February 16, 2022, and noticed there had been an intruder. He contacted the police and provided them with some of the relevant footage from that night showing various angles of the parking garage. The video footage selected by Mr. Lapointe was played in court. It does not display a time stamp when playing. Mr. Lapointe could not state in cross-examination what precise time stamp was on it, but confirmed that he was the one that labelled it as “400 Slater vandalism 11 pm”. This time is in very close proximity to when Mr. Lapointe was alerted to the power going off. Mr. Lapointe explained that when the electric power had been turned off, the security cameras and system was disabled. This explains why the footage thereafter was not available including any footage of the intruder exiting the building. Mr. Lapointe confirmed that the garage can only be entered by a fob and that the doors of the building are also locked to the public.

[52] The video footage shows a Caucasian man with short hair with a cigarette in his mouth walking into the parking garage and then turning off a switch for a heater on the ceiling. The intruder is then seen playing with a thermostat on the wall. The intruder looks up into the camera and one can get a clear view of the person’s face. Based on the images taken of Mr. Coté at the time of his arrest and his presence before me in court, I am satisfied beyond a reasonable doubt that the intruder is Mr. Coté. I also note that the intruder is wearing the same black shoes with white soles worn by Mr. Coté at the time of his arrest. The modus operandi is consistent with the other break and enters that occurred within the two-week period specified in the indictment.

[53] Mr. Lapointe reviewed some photos of the inside of the electrical room and identified what appeared to him as four cigarette butts on the ground. In his view, the room was not accessible to anyone other than staff and there was “not a chance” that the butts would have been there before February 16th because smoking was not allowed in the building. Constable Ryan Smith later testified that he observed only one cigarette butt. I do not find this discrepancy in Mr. Lapointe’s evidence to be of any consequence. Mr. Lapointe gave clear and coherent evidence about the events which were corroborated by the video footage and photographs. Mr. Lapointe’s testimony was not seriously challenged at trial. I find his testimony to be credible and reliable.

[54] Based on the evidence of Mr. Lapointe and the video footage, I find beyond a reasonable doubt that Mr. Coté broke and entered into 400 Slater Street on February 16, 2022. Mr. Coté is seen on the video footage unlawfully inside the building. Mr. Coté is seen tampering with switches and a thermostat. Within a very short time of his presence in the building, the power to the building and various other utilities were turned off as described by Mr. Lapointe. Based on the circumstantial evidence presented, it is reasonable to infer that Mr. Coté was responsible for the power and utility outage as well as the resulting damage to property in the lower-level parking garage. Consequently, I find Mr. Coté guilty on count 1, break and enter into 400 Slater with intent to commit an indictable offence, and count 2, mischief to property.

[55] The Crown invites an acquittal on count 3 given one cannot clearly discern from the video footage if the person was in possession of any break and enter tools. I would agree. Mr. Coté is acquitted of count 3.

Counts 4 and 5: Occurrence Report #22-802220 – February 9, 2022, 350 Albert Street

[56] On February 9, 2022, Mr. Eric Toovey was employed as a security manager at Constitution Square located at 350 Albert Street, a commercial building containing offices for lawyers, government agencies, and financial institutions. Mr. Toovey learned from his building maintenance staff on the morning of February 10, 2022, that a person had entered the building the previous evening, wandered around the parking garage, and tampered with multiple utility systems. The intruder had turned off the parking garage exhaust fans, switched off the brakers for garage doors, and interfered with a stump pump. Nothing was stolen and there was no interference with the electrical power. Mr. Toovey estimated that the cost of repairs was approximately $320 for the service calls and $20 for the locks but could not produce any receipts.

[57] There are over 80 cameras at Constitution Square. Upon learning the information, Mr. Toovey reviewed the security footage from the night before which he subsequently provided to the police. On the video footage, which was played in court, one can see an intruder at around 16:48 entering the parking garage just after the garage doors open and a vehicle exits. Mr. Toovey confirmed that the garage is not open to the public and generally limited to those who pay a monthly fee and enter using a fob.

[58] Upon unlawfully entering the building, the intruder is seen turning off the braker on one side of the garage and then walking over to the other side and turning off a second braker which resulted in the garage door staying open. The same intruder is then seen at level 3 of the garage interfering with the stump pump and then later at level 2 jumping up and down in front of the braker for the exhaust fan. On other videos, the same intruder is seen heading towards the electric panels and checking to see if the doors are secure or not. Finally, the intruder heads towards the diesel room, which is where the ventilation unit is located, but is unable to access the room. Mr. Toovey confirmed that nothing was stolen.

[59] There were some timing discrepancies in the time stamps displayed on the videos from the various camera angles viewed in court. These were addressed in both examination and cross-examination. For example, one video angle showed the intruder inside from 16:03 to 18:04 which was inconsistent with another video showing the person entering the premises at 16:48. Mr. Toovey could not entirely explain the discrepancies in the time stamps, but the same intruder was clearly present in all of the videos. The intruder was wearing black shoes with white soles, dark grey pants, and an Adidas sweatshirt with three white stripes. Notwithstanding the discrepancies in the time stamps of the video, I am satisfied beyond a reasonable doubt that the videos depict the same intruder having entered the building without lawful excuse and tampering with various utilities between 16:03 and 18:04 on February 9, 2022, resulting in mischief to property.

[60] I am also satisfied that the intruder is Mr. Coté. Where videotape evidence is of good quality and provides a clear picture of the events and suspect, the video evidence can constitute reliable, if not the best, evidence of the identity of the suspect: R v Nikolovski, 1996 SCC 158, [1996] 3 S.C.R. 1197, at paras. 22-23. In some of the footage of the person entering the garage and walking around, the suspect is too far from the camera to get a clear view of their face. However, on Exhibit 55 (Albert Street Video 9), the suspect walks directly into the camera and his face is clearly visible. At this time, the suspect removes their hat and one can see the receding hair line on the suspect’s head. Notwithstanding the person is wearing glasses and a hygiene mask, I find the person strongly resembles Mr. Coté as he was at the time of his arrest and presently in court. In addition, the suspect is wearing black shoes with the white soles identical to the shoes Mr. Coté was wearing upon his arrest. When I consider this visual identification along with the similar act evidence, namely that the manner and modus operandi of these acts is similar to the other break and enters carried out, I am satisfied beyond a reasonable double that the intruder is Mr. Coté. I find Mr. Coté guilty of count 4, break and enter into 350 Albert Street, with intent to commit an indictable offence.

[61] Mr. Coté is also charged with willfully rendering inoperative the hydro power and security systems at 350 Albert Street which is the basis of a mischief charge in count 5. The Crown concedes that while Mr. Coté is seen engaging in mischief with the exhaust fans, garage doors, and stump pump, there was no evidence from Mr. Toovey that this mischief resulted in any interruption to electrical or hydro power or the security system so as to render it inoperative. The Crown invites a dismissal on count 5. I would agree. Mr. Coté is acquitted of count 5.

Counts 6, 7, and 8: Occurrence Report #22-36699 – February 12, 2022, 70 Gloucester Street

[62] On February 12, 2022, Aidan Conte was working for Claridge Homes and oversaw several properties including one at 70 Gloucester Street. He testified that on February 12, 2022, he received a call between 8 and 9 a.m. from the building superintendent that the alarms were going off. Upon attendance at 70 Gloucester Street, Mr. Conte noticed that multiple utility systems located in the garage had been tampered with. Mr. Conte observed that the doors to the telecom and fire suppression room were both open. These rooms are normally locked with limited access by Claridge employees and trade persons who service the building. The intruder had pulled out plugs and switched off brakers which left the 200 tenants without electricity or water. In addition, the intruder rendered inoperative the fire suppression systems and garage mechanical systems.

[63] At trial, Mr. Conte reviewed the various photos of the panels contained in the utility rooms and testified to the condition he found them in upon his arrival. When it was suggested in cross-examination that perhaps trades people had accidentally left wires unplugged, Mr. Conte testified it was highly unlikely because one, the impact to the utility system would have been noticed immediately rather than days later; and two, he observed multiple wires were pulled out which was indicative of deliberate conduct. Given the complexity of the utility systems in place at this premises, it took service providers at least half a day to restore all the systems. The amount of voltage running through some of the electrical panels was too high for building staff to deal with by simply turning on brakers and therefore, an electrician had to be called in. Mr. Conte also had to hire security guards to watch the garage doors because the security system was rendered inoperative and the garage doors were not working. Mr. Conte estimated repair costs to be approximately $5,000.

[64] The Crown showed three videos taken from the premises. The first video showed an intruder at 5:17 a.m. pulling forcefully on the front door entrance. After a few tries, the intruder opens the door and enters the building. The intruder is then seen headed to the pool area and later walking towards a construction access door which then leads down to the parking garage where the utility rooms are located. According to Mr. Conte, there was no indication of anything being stolen. The intruder left cigarette butts around the pool area.

[65] In the video surveillance, the intruder is wearing dark grey pants, a red sweatshirt, and black shoes with white soles. These clothes are similar to the clothing Mr. Coté was wearing at the time of arrest. More significantly, the video provides a clear and high-quality image of the suspect’s face on the basis of which I am satisfied that the intruder is Mr. Coté as he was at the time of his arrest and presently in court: Nikolovski, at paras 22-23.

[66] Given that the interference with the utility systems occurred within a few hours of Mr. Coté gaining unlawful entry into the building, I find one can reasonably infer that Mr. Coté is the intruder responsible for rendering inoperative the utility systems at 70 Gloucester Street on the morning of February 12, 2022. I find Mr. Coté guilty of count 6, break and enter with intent to commit an indictable offence and count 7, committing mischief to property by willfully damaging the breaker panel controlling the fire suppression and alarm systems.

[67] The Crown invites an acquittal on count 8, an additional break and enter charge. I agree there is insufficient evidence to establish this count. Mr. Coté is acquitted of count 8.

Counts 12, 13, and 14: Occurrence Report #22-39263 – February 14, 2022, 530 Laurier Avenue

[68] On February 14, 2022, Derek Barclay was the superintendent responsible for overseeing two buildings at 500 Laurier Avenue Tower A and 530 Laurier Avenue Tower B. Each building contains about 220 units. On February 14, 2022, at 11 p.m., Mr. Barclay received a call from staff of the security company responsible for monitoring the towers indicating that the power had gone off to one of the buildings. Mr. Barclay attended the parking garage to see if he could get the generators going for the building. Upon arrival in the garage, Mr. Barclay noticed that the latch to the cage of the electrical room was broken and that many of the brakers were turned off. While the electrical room was located in level B1 of the garage at 500 Laurier, it provided electrical power to 530 Laurier Tower B. Mr. Barclay also observed that other brakers in other areas of the garage had been interfered with thereby cutting off the hot and cold water supply to the building residents. Having been a superintendent for over 35 years, Mr. Barclay was well aware of what he could safely repair. He worked until 5:15 a.m. the next morning manually turning on as many brakers as he safely could to restore the systems.

[69] Mr. Barclay reviewed the video footage seized from the premises. He confirmed that access to the building is limited to the residents who enter the garage using a fob. The video footage shows an intruder sneaking into the garage just as a garage door is closing. The intruder is then seen walking around the garage. At approximately 22:48, the intruder heads towards the cage of the electrical room. The intruder tries to climb the fence but is unable to. The intruder walks away and then returns to the cage at 22:52, about eight minutes before Mr. Barclay was called by the security company. This time, the intruder is seen tampering with the latch with what appears to be a tool in his hand and breaks the latch. The intruder enters the electrical room where Mr. Barclay later attended and observed the brakers turned off. Following the intruder’s entry into the room, one can see on the video footage some of the lights in the parking garage go off. Based on the very close proximity of time between the intruder’s entry into the electrical room as seen on the video footage and when Mr. Barclay is called regarding the power going off, one can reasonably infer that the intruder was responsible for the utility outages at 530 Laurier Avenue.

[70] In this instance, Mr. Coté is correct that some of the video footage is blurry, and one cannot see a clear image of the intruder’s face. Nonetheless, I am satisfied that the intruder is Mr. Coté. First, the intruder is a white Caucasian male wearing grey pants with black knee patches, a black insulated coat with a hood, and black shoes with white soles similar to what Mr. Coté was wearing at the time of arrest for a similar offence. Second, the similarity in which the offences are carried out supports the identification of Mr. Coté as the intruder. The intruder is observed entering premises unlawfully, engaging in the same modus operandi involving tampering with utility systems and without stealing any items, and engaging in a characteristic twirl as he walks around the parking garage. Consequently, I find Mr. Coté guilty of count 12, break and enter of a residential building at 530 Laurier Avenue with intent to commit an indictable offence, count 13, mischief to property by rendering inoperative the hydro power at 530 Laurier Avenue. Given that I cannot discern what tool was in his hand, I find Mr. Coté not guilty of count 14.

Counts 17 and 18: Occurrence Report #22-39766 – February 15, 2022, 150 Slater Avenue

[71] Erin Nagy is the Property Director for a commercial building located at 150 Slater Street and which was owned by Manulife Real Estate. She testified that at 3 p.m. on February 15, 2022, building staff informed her that areas of the building had been tampered with. Ms. Nagy checked the video cameras to examine all three levels of the parking garage and observed an intruder had been in the building. The video footage was played in court and showed an intruder inside the garage as early as 2:16 p.m. Ms. Nagy confirmed that the garage is not accessible to the public. Persons who wish to access the garage must use a fob.

[72] Various camera angles show the intruder walking around the garage and taking the elevator to different levels of the parking garage. At approximately 2:18 p.m., the intruder is seen on camera PTZ East breaking the lock to the cage surrounding the electrical room and entering the room. While some of the lights in the garage area had gone off, the electrical power to the building was not turned off. The intruder is last seen in the garage on the video surveillance at 2:29 p.m.

[73] Ms. Nagy testified that nothing was stolen. However, the gas and air intakes located in the electrical room were tampered with, lights in certain areas of the parking garage were turned off, switches were disabled so that some garage doors and the revolving door to the lobby were not working, and the lock and cage to the electrical room were damaged. Ms. Nagy arranged to have the gas and air intake valves restored and for repairs to the lock and cage of the electrical room. In addition, Ms. Nagy hired additional security on a temporary basis because the building housed a federal agency, the intruder’s motive was unknown, and the “Freedom Convoy” was taking place in Ottawa.

[74] The video footage shows the intruder wearing a black coat with a hood, dark pants, and black shoes with white soles similar to what Mr. Coté was wearing at the time of his arrest on Scott Street. In addition, the intruder engages in a twirl while walking around the parking garage which was a unique feature observed on other video footage of the other break and enters. Most significantly, the video footage seized from Slater Street provides a clear and high quality image of the intruder who is a white Caucasian male with a balding head, and based on the images taken of him at the time of his arrest and his appearance before me, I am satisfied the intruder is Mr. Coté: Nikolovski, at paras. 34-35.

[75] Based on the video surveillance evidence depicting Mr. Coté’s unlawful presence in the garage, his conduct tampering with the lock and cage to the electrical room, and the testimony of Ms. Nagy that not long after his entry it was discovered that the utility systems had been tampered with in the garage, one can reasonably infer that Mr. Coté is responsible for the resulting mischief to property described by Ms. Nagy. I find Mr. Coté guilty of count 17, break and enter of a commercial building at 150 Slater Street, and count 18, committing mischief to property by willfully rendering inoperative the hydropower, gas compression, and security systems of the property of Manulife Real Estate.

Counts 19 to 22: Occurrence report #22-41623; February 16, 2022; 101 Queen Street

[76] Jennifer Jones is employed with Ashcroft Homes as a condo manager and oversees 101 Queen Street. This is a mixed residence building with both commercial and condo units. The building contains 91 units and a 6-level parking garage. People can enter the parking garage using a fob or if they come for a limited time, purchase a parking ticket inside the garage building.

[77] On February 16, 2022, Ms. Jones received a call from the site manager of the building that the power was off in the entire building. She believes she received the call around 8:30 p.m. Consequently, there was no electricity to the building and any systems relying on electricity, including the security system and elevators, were not functioning. Ms. Jones did not attend the building that day but she contacted an electrical company to attend and restart power in the building. She later learned that when the power went out, someone had been trying to exit the garage and the parking gate came down on a car. Fortunately, the occupant of the car was not injured, and the car was not damaged.

[78] The following day, Ms. Jones reviewed some video footage from the parking garage which was subsequently provided to the police and played in court. One can see from the footage, an intruder entering the garage of the building at 8:20 p.m. on the day in question and doing what Ms. Jones described as a “funny dance.” This “dance” is characteristic of the twirl Mr. Coté is observed to be doing on footage taken from the other break and enter locations.

[79] The intruder is then seen entering a side lobby of the parking garage where there is a machine for obtaining a parking ticket and is seen drilling for a considerable period into the side of the machine with a tool. The intruder is later seen trying to enter what Ms. Jones described as the commercial tenant room which contains tools and construction equipment. The video footage also shows the intruder going inside his bag and using another tool to try to pry open another set of doors. At 8:44 p.m., the intruder is seen close to the electrical room. No cameras are located in the electrical room but Ms. Jones learned from the maintenance managers that this door was opened and it was here that the hydropower had been turned off. Ms. Jones testified that nothing was stolen from the premises, but the total cost of repairs was $764.49.

[80] The video footage provides a clear and high-quality image from which one can clearly see Mr. Coté’s face. Mr. Coté is wearing a red cap, black coat, dark pants and the same black shoes with white soles that he was wearing at the time of his arrest. Based on the video footage, I am satisfied that the intruder is Mr. Coté.

[81] I find Mr. Coté guilty of count 19, break and enter into 101 Queen Street with intent to commit an indictable offence, count 20, mischief to property by wilfully rendering inoperative the hydro power and security, the property of Ashcroft Residences Luxury Condominiums, and count 22, possessing a break and enter instrument, a drill.

[82] I do not find Mr. Coté guilty of count 21. I find there is insufficient evidence to determine when precisely the garage gate came down and if it can be directly attributable to the loss of power as suggested by Ms. Jones. I am not satisfied that there is sufficient evidence to establish beyond a reasonable doubt that Mr. Coté willfully damaged the parking security gate.

Counts 35 and 36: Occurrence Report #802732 – February 15, 2022, 250 Lett Street

[83] Scott Dascenzo has been employed with Apollo Property Management for over eight years. He is responsible for overseeing two properties connected to one another at 200-250 Lett Street. Mr. Dascenzo testified that February 2022 was a high-stress time for individuals living in downtown Ottawa because of the events surrounding the “Freedom Convoy” including reports of vandalism. On the morning of February 16, 2022, he learned from building staff that someone had entered the electrical room and interfered with electrical panels and cut wires.

[84] The following day, Mr. Dascenzo reviewed the security footage with the building manager and observed that an intruder had entered the parking garage on the day in question. He provided the footage to the police which was subsequently played in court. From the security footage, one can see an intruder in the garage on February 15, 2022, at around 18:32. Mr. Dascenzo explained that the garage is not accessible to the public. The intruder is observed doing a twirl and then heading towards the utility and storage rooms. Other videos show the intruder tampering with an electric panel and heat pump fans located in different parts of the garage. These panels were not the main sources of the building’s power supply, and Mr. Dascenzo could not confirm that the intruder’s tampering observed on the video footage resulted in any loss of power or heat. Mr. Dascenzo did confirm, however, that the building staff found another electric panel that had been interfered with and where wires were cut. Mr. Dascenzo called a service contractor to fix the wires and replace the locks for the electrical room. In examination-in-chief, he estimated the cost of the service calls was between $500 to $800 and later in cross-examination, he suggested it was closer to $1000. He did not have receipts of the repairs. Mr. Dascenzo confirmed that nothing was stolen.

[85] The video footage from 200-250 Lett Street is grainy and does not provide as sharp an image of the intruder as seen in the video footage from other locations. The video footage shows a white Caucasian male wearing a black coat, black pants, and the same black shoes with white soles which Mr. Coté is seen wearing in other occurrences and on his arrest. The intruder engaged in the same twirl observed at other locations. The modus operandi of the conduct is the same. Based on the video footage and the similar act evidence, I am satisfied beyond a reasonable doubt that the intruder is Mr. Coté.

[86] I find Mr. Coté guilty of Count 35, breaking and entering into 200-250 Lett Street with the intent to commit an indictable offence. He is observed in the building unlawfully and also tampering with the electric and heat panels. While the footage does not show Mr. Coté interfering with the panels in the electric room, one can reasonably infer that he is responsible for all the damage to the utility systems described by Mr. Dascenzo based on Mr. Coté’s presence in the garage that day at 18:32; the observations of his conduct with respect to the other building systems; and that damage to other electric panels was discovered on/around the same time that Mr. Coté was in the garage.

[87] The Crown invites a dismissal for count 36 because there is insufficient evidence that Mr. Coté’s conduct rendered the security systems and hydropower inoperative as that count is particularized. I would agree. Mr. Coté is acquitted of count 36.

Counts 37 to 40: Occurrence Report #22-46299 – February 22, 2022, 141 Cooper Street

[88] Angelo Kassotis was the senior superintendent for 131 and 141 Cooper Street. He lived at 141 Cooper Steet. He described the building as a residential 12 story apartment complex which combined with 131 Cooper contains about 225 units. On February 22, 2022, at around 11:30 pm, he was contacted by another junior superintendent informing him that there was loss of power to 131 Cooper. He attended the electrical room and observed that someone had manually shut down all the power systems. He contacted Ottawa Hydro and an electrician to determine if he could turn everything on and then learned that 141 Cooper had also lost power. When he examined the electrical room at 141 cooper, he observed that someone had similarly tampered with brakers and levers. He also observed that the back up generator which provides emergency power for hallway lights, elevators, and the fire suppression system has been turned off along with the switch for the sprinkler system. It took Mr. Kassotis all night to get everything operational again. Mr. Kassotis reported that nothing was stolen, but a few of his personal belongings that were in one of the basement rooms had been tampered with.

[89] Mr. Kassotis reviewed the security footage that was available prior to the power being shut off. It showed that at 23:05, about 30 minutes before the power was reported out, an intruder trying to enter a door at the rear parking of 141 Cooper. The person is initially unable to get in but then tries again using a screw driver or flat crow bar to open the door. Cst. Danis later attended the scene and took photographs to the damage to the door. These doors are normally only accessible with a fob or a key that only Mr. Kassotis has. Once in the building, the intruder then heads to the elevator to go down to the basement where all the utility rooms are located. The intruder is seen at 23:09 pm exiting the elevator in the basement and walking down the hallway towards the utility rooms that powers the 141 side of the building. One utility room is labelled HVAC and the other is labelled Electrical, and it is in each of these rooms that Mr. Kassotis later observed the tampering. Based on the timing of the intruder’s presence in the basement and the power outage, one can reasonably infer that the intruder is responsible for the tampering in the utility room.

[90] As a result of the incident, property management changed the metal plates to the entrance door to make it more difficult to enter the building and added extra deadbolts to each of the doors to the utility rooms. Mr. Kassotis could not recall the cost of these repairs and enhancements but estimates it was under $5000.

[91] The video surveillance also provides a high quality image of the intruder’s face while standing in front of the elevator. The image is of a white Caucasian who I am satisfied is Mr. Coté. In addition, the intruder is wearing a black hoodie with the words “Never Enough” and black shoes with white soles identical to what Mr. Coté was wearing at the time of his arrest. Based on the video footage and evidence of Mr. Kassotis, I am satisfied beyond a reasonable doubt that Mr. Coté broke and entered into 141 Cooper Street, that he used a screwdriver to break and enter the door, and that he committed mischief to property by interfering with the electrical power, generators, and fire suppression systems therein. I find Mr. Coté guilty of counts 37 to 40.

Counts 41 to 43: Occurrence Report #22-46329 – February 23, 2022, 235 Somerset Street

[92] Chris McDonald was a resident of 12-storey apartment building called Kenson Towers situated at 325 Somerset Street West. The building is owned and managed by Taggart Realty. The building has two doors at the front entrance. The first door is unlocked and leads to a vestibule area. To enter the building, one has to then use a key pass for a second set of doors to the lobby.

[93] On February 23, 2022, sometime between 2 and 3 am, Mr. McDonald went outside to take his girlfriend’s puppy for a walk. While exiting, he saw that there was some damage to the front door and that the door handle was on the ground in the vestibule. He walked to the corner of the street, and after the puppy had done its business, made his way back. Upon approaching the building he saw that the power had gone out. There were no lights in the vestibule or lobby. He later tried his key card to the building and saw someone moving in the lobby area. At first he thought it was the superintendent, but it wasn’t. He saw the person walk to the eastern stairwell and exit a side door. The same person came around the corner. He described the person as 5’ 7”, wearing a dark hoodie, dark clothing, and carrying two shoulder bags. He followed the person a short while and then went towards a police car parked on a nearby street and told them that someone had tried to break into the building. He noted that another incident had occurred in the building just a week before where someone had cut the power to the basement and damaged Bell Canada cables.

[94] Kevin Short, the maintenance manager of the building, testified that he was awoken by a neighbor at around 2:40 am who informed him that the power was off. Mr. Short went down to the basement to check the bakers and discovered that some of them were turned off. He turned them on, but it did not appear to make a difference. He later came to understand that this was because whoever had tampered with the brakers had also turned off an emergency switch that provided power to both buildings at 225 and 235 Somerset Street West. Mr. Short had reviewed the security footage and sent it to the police, but he could not recall much about the incident at trial. He could not explain why the video footage skipped or why it ended when it did. He did confirm that nothing was stolen from the buildings and that the doors and parking garage areas are only accessible to tenants who have a fob. Some repairs had to be made, but he could not recall the cost.

[95] The Crown played video footage taken from the security cameras on the day in question. On the video, one can see at 12:33 am and again at 1:10 am, the same person in the vestibule area yanking at the door handle of the building and using all the force they can muster to open it. The intruder is wearing a hoodie with the words that says, “Never Enough” and black shoes with while soles which are identical to what Mr. Coté was wearing at the time of his arrest later that same day. At 1:37 am, the intruder has left the front vestibule and one sees a resident wearing a plaid shirt exit the building and then returns a short while later. The resident uses his key pass to open the door, but when he goes to pull on the door, the door handle comes off. The video ends at 1:44:15. When Mr. McDonald exited the building for his walk, he had observed the door handle on the ground.

[96] On the video footage, one can see the intruder loitering in the vestibule area. The intruder is wearing a black hoodie with the words Never Enough and black shoes with white soles that area identical to what Mr. Coté was wearing at this time of arrest later that day. In addition, the person is seen engaging in twirls that were characteristic of Mr. Coté’s walking pattern. Based on these identification markers, I am satisfied that the intruder in the vestibule is Mr. Coté and that he was the person who cause the mischief to the door which resulted in the handle falling off when a resident later pulled on it. Furthermore, notwithstanding the 30 to 45 minute gap in time between when Mr. Coté is seen in the vestibule and when the power goes out, I am satisfied beyond a reasonable doubt that Mr. Coté unlawfully entered the building possibly through a side door and tampered with the utility systems resulting in the power going off. This finding is based on the circumstantial evidence of the video footage showing Mr. Coté is seen in the vestibule of the building and attempting to forcefully open the door not long before the power goes out. Furthermore, the modus operandi of this break and enter is the same as the others: the person enters not to steal, but to shut down the utility systems, and the suspect engages in the characteristic twirl seen on security footage from other break and enters in which Mr. Coté is involved.

[97] I find Mr. Coté guilty of count 41, break and enter into 235 Somerset Street West with intent to commit an indictable offence and count 43, mischief to property by wilfully rending inoperative the hydro power and security systems of Taggart Reality.

[98] The Crown invites an acquittal on Count 42 as one cannot precisely see the instrument in Mr. Coté’s hands when he is tampering with the front door entrance. I would agree. Mr. Coté is acquitted of count 42.

Counts 54 and 55: Occurrence Report #802685 – February 16, 2022, 328 Besserer Street

[99] Ivan Stojkovic was the security guard at 238 Besserer Street, a 200 unit residential building owned by Galleria 2 Condominium. Mr. Stojkovic was contacted at 1:45 pm on February 16, 2022, by property management and told that someone had tampered with the electrical equipment for the two commercial AC units that provide heat to the building. Mr. Stojkovic then attended the parking garage where he observed that two brakers for the commercial AC units had been tampered with. The cost of repairs was about $1000.

[100] Mr. Stojkovic reviewed the CCTV footage from the night in question. In it, one can observe a male person entering the parking garage at 11:05 pm. The garage is not accessible to the public. The intruder is seen climbing onto some railings and trying to access the AC unit. This particular unit, however, was not the unit that was later observed damaged. The intruder is seen entering and exiting the garbage room, walking towards the mechanical room, and then continuing to walk around various levels of the garage. Mr. Stojkovic testified in cross-examination that while there was no specific videos showing the intruder damaging the two AC units, he did not observe any other intruders in the building in that day in the garage. He also confirmed that nothing was stolen.

[101] The video footage is grainy but depicts the intruder as a white male with a shaved or bald head similar to Mr. Coté. The intruder is wearing a mask and glasses, black hooded winter coat, black shoes with white soles, and is carrying a duffel bag. Relying collectively on the person’s image in the video, that the person is wearing black shoes with white soles identical to what Mr. Coté was wearing at the time of arrest, and that the modus operandi appears to be the same as that of other occurrences in which Mr. Coté was involved, I am satistified beyond a reasonable doubt that the intruder is Mr. Coté.

[102] Furthermore, given there is no lawful justification for Mr. Coté’s entrance into the garage, that Mr. Coté is seen tampering with at least one AC unit, and that he is observed to be the only intruder in the garage within a two hour time frame of when the other AC units were disarmed, I find it is reasonable to infer that Mr. Coté was responsible for the damage to the two commercial AC units. I find Mr. Coté guilty of counts 54, break and enter into 238 Besserer Street with intent to commit an indictable offence and count 55, mischief to property by willfully rendering inoperative the heating system, the property of Galleraia 2 Condominium.

Counts 56 and 57: Occurrence Report #22-46817 and 803052– February 22, 2022, Rideau Shopping Mall

[103] On February 22, 2022, Adrian Ayotte was employed as an Operations Supervisor for Cadillac Fairview at 50 Rideau Street. His job included overseeing the mechanical and electrical areas for the mall including the parking garage. He explained that the parking garage was accessible to the public through paid parking.

[104] On February 22, 2022, he received a call from several store managers that they were out of power in the Rideau Centre Mall. He attended the electrical rooms in Rideau Centre Mall. Upon approaching the electrical room, he noted the door was not fully closed. The door was usually closed, but sometimes staff would give access to service providers for reading of meters. He recalled there had been lots of people in the room the day before but not on the day of the incident.

[105] The primary purpose of the electric panels in the room is to supply hydro to 25% of the mall. There are six to eight brakers, and each braker can be anywhere from 6,000 to 10,000 volts. He noticed that an entire side of breakers had been shut off. He was not permitted to fix the problem because of the danger of dealing with high voltage panels. Two electricians attended and the power was restored after a few hours. The resulting impact was to the tenants of the building who lost several hours of business because of the loss of power.

[106] Following the incident, Mr. Ayotte obtained video surveillance of the area from the security team. They downloaded the relevant footage and showed it to him. On the footage, one can see an intruder walking in the hallways in the area of the electrical room. In another scene, the intruder is seen twirling around in the hallways. The intruder is seen entering the mechanical room at 11:59:41 and exiting the room at12:01:39. It is this room that contains the electric panels that powers some parts of the mall. Mr. Ayotte recalls receiving the call that power was off in part of the mall around 12:10 p.m. Mr. Ayotte drew a picture identifying the hallways and mechanical room. Mr. Ayotte reported that nothing was stolen.

[107] The intruder on the video image is a Caucasian male who strongly resembles Mr. Coté. He was wearing a black jacket with white marks on the back stating “Never Enough” identical to what Mr. Coté was wearing the following day upon his arrest. Based on the image of the suspect, the clothing he is seen wearing, and the similar act evidence supporting the same modus operandi, I am satisfied beyond a reasonable doubt that the intruder is Mr. Coté. I find Mr. Coté guilty of count 56, break and enter into the secure mechanical room of the Rideau Center with intent to commit an indictable offence and count 57, mischief to property by wilfully obstructing the hydro power for the Rideau Centre.

Count 30 – Occurrence Report #22-46817- Rideau Parking Garage – Feb. 22, 2022

[108] The incident at Rideau Centre occurred around noon on February 22, 2022. Mr. Ayotte testified that the following day, he learned from security staff that an intruder had been observed at the Rideau Centre parking garage on the night before. Mr. Ayotte was not responsible for managing this occurrence, which is the subject of count 30, mischief to property by willfully damaging and rendering dangerous property, namely the main power box to electrical vehicles, referred to as the “Tesla charging station.”

[109] The Crown tendered video footage which shows an intruder in the parking garage at 7:29 pm exiting the doors of the lobby and walking towards where the Tesla charging station is located. The same intruder is then seen walking away from the area where the Tesla charging station is located at approximately 7:37 pm. There are no security cameras around the Tesla charging station. The Crown theory is that the intruder is Mr. Coté and that in this 8 minute gap he jumped over the fence surrounding the Tesla charging station and interfered with the electrical system. The same intruder is then seen later exiting another elevator lobby.

[110] The Crown called Domenico Ciccione, an electrician by trade whose present job is to oversee Tesla charging stations in Ontario and Quebec. Mr. Ciccione testified that on the morning of February 23, 2022, around 10:30 am, he received a call from his boss that the Ottawa Tesla charging station was down and to attend to the matter. He drove from Mont Tremblant and arrived at the Ottawa Rideau Centre around 12:30 pm. He observed that the lock on the fence surrounding the charging station was still there and so he opened it. He also observed that some of the brakers were off. In some circumstances, he would turn the breakers on. However, he also noticed that the truss, a box which contains the wires which receive electricity from Ottawa Hydro to feed the Tesla charging station, was open and various wires had been unscrewed and remained loose. Fortunately, upon seeing that the wires had been tampered with, he refrained from taking any further action. Based on his experience as an electrician, Mr. Ciccione was of the view that had he turned on the levers to restore power while the wires were loose, there could have been a serious explosion and injury to persons in the area because of the high voltage of electricity running through the Tesla charging station. Mr. Ciccione called Ottawa Hydro as well as the police.

[111] The security video with the intruder at the elevator lobby provides a sufficiently high quality image of the intruder’s face from which I recognize the person to be Mr. Coté. The intruder is also wearing black shoes with white soles and a sweatshirt that says Never Enough, the same clothing Mr. Coté was wearing at the time of his arrest on February 23rd. The intruder is also seen twirling, a characteristic of Mr. Coté’s walking pattern previously observed. I am satisfied beyond a reasonable doubt that Mr. Coté was in the Rideau Centre parking garage on the evening of February 22nd and is the person depicted walking towards the Tesla charging station at 7:29 pm.

[112] However, I am not satisfied beyond a reasonable doubt that Mr. Coté is responsible for the mischief to the Tesla charging station. First, unlike the other occurrences which involved unlawful entry into secure buildings, the Rideau Centre parking garage is easily accessible to the public and anyone can enter and leave this area freely. The garage is one where people park their cars to enter the shopping mall. In fact, on the images provided of the entrance to the lobby of the parking garage, one can see the words “Simons” which is one of the stores in the mall. Furthermore, as Mr. Coté highlighted in cross-examination of Mr. Ayotte and in his closing submissions, the area surrounding the Rideau Centre is considered a higher crime area of downtown Ottawa.

[113] Second, unlike the other occurrences, there is a considerable time gap between when Mr. Coté is seen in the Rideau Centre parking garage and when it is discovered that the charging station has been tampered with. In the other occurrences, the utility outage was determined to have occurred within a reasonably short period of time, well within 2 hours of Mr. Coté’s presence in the building whereas in this case, there is a 15-hour gap between when Mr. Coté is seen in the parking garage and when the power outage to the station is determined. While Crown counsel argues that during this time there is no other intruder in that period walking towards the Tesla charging station, that is not the evidence before me. No evidence was called from the security officers of the mall to confirm that they reviewed the footage for the entire night and other than Mr. Coté, they did not observe any other person in the public parking garage of the mall during the 15 hour time period walking towards or in the vicinity of the Tesla charging station. Based on the circumstantial evidence presented, I do not find it is reasonable to infer that Mr. Coté is responsible for the mischief to the Tesla charging station. The evidence presented leaves me with a reasonable doubt and Mr. Coté, is therefore acquitted of count 30.

[114] Should there be any discrepancies between the oral and written decision, the written decision shall prevail.

Released: June 5, 2023 Somji J.