Ontario Superior Court of Justice

Court File No.: CR-19-50000097-00AP
Date: 2025-06-17

BETWEEN:
His Majesty the King
– and –
Zaheer Ahmad

A. Hannah-Suarez, for the Crown
C. Cotton-O’Brien, for Mr. Ahmad

Heard: April 4, 2025

S.A.Q. Akhtar
On appeal from the conviction entered on 4 November 2019 by Justice R. Grinberg of the Ontario Court of Justice.

Factual Background and Overview

[1] On 4 November 2019, the appellant, Zaheer Ahmad, was convicted of two charges of failing to comply with a court order. The first conviction related to a recognisance of bail entered into on 3 April 2019. The second conviction was in respect of a probation order imposed on 28 November 2017.

[2] The Crown alleged that the appellant breached his bail terms and probation order by phoning and emailing the victim. The trial judge agreed and convicted the applicant. He now appeals his convictions and argues that the trial judge erred by failing to properly apply the test set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 when considering the circumstantial evidence.

The Conviction

[3] As noted, there were two court orders in issue in this case.

The Probation Order (28 November 2017)

[4] The first was a probation order which did not involve the victim in this case. The appellant was convicted of criminal harassment in relation to another victim and sentenced on 28 November 2017. As a result, the applicant was subject to a probation order (the probation order) which required him to keep the peace and be of good behaviour.

The Recognisance (3 April 2019)

[5] The second court order was a recognisance that the appellant entered into on 3 April 2019 after being released on bail. One of the bail conditions prohibited the appellant from contacting the victim in this case by electronic or any other means.

[6] The Crown alleged that following the appellant’s release on bail, he made a series of calls to the victim on 24 May 2019. These calls prompted the victim to change her phone number. The Crown further alleged that the appellant sent the victim three emails dated 29 May, 1 June, and 3 June 2019. These phone and email communications formed the basis for the prosecution.

[7] The victim was a partner in a nonprofit organisation that teaches reading and writing to inmates housed in the Toronto South Detention Centre (TSDC). Although the victim taught lessons at the TSDC, the appellant was not one of her students.

[8] The victim’s first encounter with the appellant occurred sometime in 2017 when she visited the TSDC to work with a student on the unit. While she was there, she noticed the appellant waving at her from across the range. The victim returned the wave out of politeness.

[9] A few weeks later, after the appellant had been released from custody, the victim encountered him in the common area of the TSDC. He handed the victim a note. The note said nothing of substance and the victim thought nothing of it.

[10] The victim’s third encounter with the appellant was that same year at Kensington market in Toronto. She was accompanied by two friends who entered a store whilst she waited outside with her dog. The appellant exited from the store and began a conversation with the victim and asked where she was going. After that interaction, the victim received two further hand delivered letters, at the TDSC. The first letter was signed in words to the effect of "someone or the person who waved". The victim encountered the appellant a fourth time in the waiting area of the TSDC and he provided another letter together with what was apparently a rough draft of the same letter.

[11] The three letters appeared to contain elements which implied a close personal relationship between the appellant and the victim. At trial, the victim described this notion as “delusional”.

[12] On 22 March 2019, the victim and her husband went to collect food. While stopped at a traffic light, the victim noticed the appellant at the side of her window trying to get her attention. The victim could not hear what was said because her window was closed. When the light turned green, the victim abruptly left the scene.

[13] On 29 May 2019, the victim received an email with the subject line "you know I love you right!!!". This email described a relationship between the appellant and the victim which he described as a "very special and intimate bond". The email contained comments which appear to indicate that the appellant thought the victim was interested in a relationship with him and liked reading the letters that he had given her.

[14] On 1 June 2019, the victim received a second email which again indicated the appellant’s belief that the two were in a "relationship". The appellant wrote "would you like to be treated the way I've been by someone in a 'relationship'. Don't block me out I'm not against you".

[15] On 3 June 2019, the victim received a third email. It contained the lines “you have been in my life now and prayers for three Ramadan. I did fast the first time I saw you/ met (someone who waved letter- Kensington)”. Attached to the email was an image of the Taj Mahal which had been referenced in the email and two photographs of the victim that had been posted on Instagram. The email referenced Kensington market, a letter, and waving at the victim.

[16] All three emails were unsigned.

[17] The appellant was arrested on 4 June 2019.

[18] The Crown alleged that the appellant had breached his bail terms prohibiting him from contacting the victim by sending these emails and phoning her.

[19] The judge dismissed the Crown’s allegations that the appellant had made a series of phone calls to the victim in violation of his recognisance of bail because there was insufficient evidence of identification of the caller. However, the judge found that the Crown had proven beyond a reasonable doubt that the appellant had written and sent the described emails and breached his bail. As a result, she convicted him of that charge. As the probation order required the applicant to keep the peace and be of good behaviour, the judge found his actions constituted a breach and convicted him of the second charge.

The Grounds of Appeal

[20] The appellant acknowledges that this case turns entirely on the question of identity. He submits that the trial judge acquitted the appellant in relation to the phone calls because of the Crown’s failure to provide sufficient evidence of identity. He argues that the trial judge failed to hold the Crown to its burden of proof in relation to the emails. As this was a circumstantial case, the appellant argues that the judge was bound by the principles set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. Villaroman requires that when convicting on a case based entirely or substantially on circumstantial evidence, the trier of fact must find that there is no reasonable alternative to guilt.

[21] The appellant argues that the trial judge reversed the burden of proof and ignored evidence that cast doubt on the appellant’s identity as the author of the emails in question. The appellant argues that there was clearly other circumstantial evidence that could have supported a finding of not guilty as it could demonstrate that someone else wrote the emails.

The Villaroman Test

[22] The Villaroman test states that in circumstantial cases an accused’s guilt must be the only reasonable conclusion available on the evidence: R. v. Bakal, 2023 ONCA 177, para 32.

[23] A trier of fact must look at the evidence as a whole and not isolate one piece of evidence to subject it to independent scrutiny: R. v. Johnson, 2023 ONCA 120, para 7; R. v. Khalid, 2022 ONCA 501, para 23; R. v. Charron, 2022 ONCA 394, paras 22-24; R. v. Staples, 2022 ONCA 266, paras 102, 109; R. v. Gibson, 2021 ONCA 530, paras 78-83.

[24] The Villaroman principles apply only to cases that are entirely or substantially circumstantial and not to individual pieces of circumstantial evidence tendered in a case which is otherwise comprised of direct evidence: R. v. I.S., 2025 ONCA 76, para 3.

[25] In Villaroman the court stated, at para. 37, that:

When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), aff'd, [1938] S.C.R. 396, at pp. 205 and 211, per Middleton J.A.; R. v. Baigent, 2013 BCCA 28, para 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[26] Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[27] The court added that “to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative -- a helpful way of describing the line between plausible theories and speculation”: Villaroman, at para. 41. In Villaroman, at para. 42, the court made clear that “the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.”

Did the Judge Err in This Case?

[28] The judge held that the evidence established beyond a reasonable doubt that the appellant was the author of the emails. She gave the following reasons to support her conclusion:

Ms. Keystone was both a credible and reliable witness. I found her to be candid with the court, and she did not exaggerate her evidence. I am satisfied beyond a reasonable doubt that the accused sent the three emails, Exhibit 4(a)(b), and (c) to the complainant, and therefore, he breached both his recognizance of bail, and his probation order.

The three emails are from the same email address over a span of six days. The emails make reference to specific and personal events that only the accused and the complainant are aware of. I reject the submission that because the complainant told others about the interactions between her and the accused, it is open for me to find that someone else could have written these emails.

At this trial, the complainant gave a detailed account of her interactions with the accused. Those interactions were referenced in the emails sent by the accused to the complainant.

References included:

1. Letters he wrote her.
2. The fact that he sent her flowers.
3. A reference to Holly, who was the coordinator at the Toronto South Detention Centre.
4. Reference to Laurie Shanks, who is the coordinator at the East Detention Centre.
5. Reference to the chaplain at the East Detention Centre.
6. Reference to their meeting on March 22, 2019 when she was picking up food with her husband.
7. Reference was made to their meeting at Kensington Market.

[29] The appellant argues that in coming to her conclusion the judge failed to consider other plausible theories that could point to someone else as the author of the emails. He submits that the evidence shows that others knew of the facts that were contained in the emails and therefore allowed for the reasonable possibility that someone else had written the emails.

[30] As noted above, deference is owed to the trial judge in her analysis and conclusions regarding the evidence.

[31] Here, the critical point is the trial judge did not use generic factors demonstrating contact between the complainant and the appellant. The judge relied upon the “detailed account of [the complainant’s] interactions with the accused” which was reflected in the correspondence she received. These included the letters sent to her, specific names of employees at the detention centres, and locations of the meetings. Moreover, the judge was entitled to use the cumulative details to found her conclusion that the only reasonable inference was that the appellant was the author of the communications.

[32] Whilst the complainant may have told others of the encounters, the judge made clear that her decision was based on facts and details that only the complainant and the appellant were aware of. That finding, which the judge was entitled to make and must be given deference, permitted her to determine that the only reasonable conclusion was that the appellant had written the emails.

[33] For these reasons, the appeal is dismissed.

S.A.Q. Akhtar
Released: 17 June 2025