R v Roccia, 2020 ABQB 769

Court of Queen’s Bench of Alberta Citation: R v Roccia, 2020 ABQB 769 Date: 20201210 Docket: 180736100Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jason Eugene Roccia Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] Mr. Roccia was charged with attempted kidnapping with intent to confine or imprison, communicating to obtain sexual services for consideration, assault, and criminal harassment arising from a series of incidents involving him and the complainant on June 19, 2018 in Edmonton.

[ 2 ] The complainant and Mr. Roccia provided starkly different accounts of their interactions that day. Per the complainant, shortly after seeing Mr. Roccia at a retail clothing store she worked at and was leaving, she saw him again about a block away. After a brief conversation, he asked her how much it would cost for her to have sex with him. Repulsed by this question, she stepped back and took a photo of his nearby vehicle (including license plate). She then ran away, but he caught up with her, grabbed her by the wrist, and pulled her towards the vehicle.

She broke free, ran away and, after hiding in an alley, called 9-1-1. A short while later, having walked around to the front of the block in question, she again saw Mr. Roccia, who had driven to where she was. He came up to her again, but ended up walking away from her as police arrived. [ 3 ] Per Mr. Roccia, he first saw the complainant “bolting” out of the store in question.

From her breakneck pace and unintelligible screaming by her as she ran, he thought she was “bizarre.” He said that he encountered her a few minutes later, in the location described by the complainant, where he had stopped on account of possible mechanical issues with his vehicle. Per him, the complainant asked him for a ride, would not take no for an answer, and had to be chased off via cursing. After unaccountably taking a photo of his vehicle, she ran off, initially onto a major thoroughfare, blocking traffic, and then back into the residential area.

He then drove to a tire shop to have his vehicle checked and, after another errand, returned to the neighbourhood on his original shopping errand at a nearby garden centre. Nearing his destination, he again encountered the complainant, this time with on the front lawn of a residential property. Seeing her with an “elderly gentleman” and assuming him to be her father, he approached the man to advise that he should “keep an eye” on the complainant in light of her bizarre behaviour Mr. Roccia had earlier witnessed.

In response, the man pushed him; to avoid a confrontation, he walked away, as the police arrived. [ 4 ] This case comes down to credibility. [ 5 ] I find that Mr. Roccia’s account is largely not credible. I find that the complainant’s account of the core incidents is credible. Considering all the evidence, I am convinced beyond a reasonable doubt of Mr. Roccia’s guilt on the communication, assault, and harassment charges. I am not convinced to the same standard on the attempted kidnapping charge. B.

Law [ 6 ] Both counsel invoked the well-known teaching of R v W(D) [1] , per Cory J. for the majority: Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury [or himself or herself] on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 7 ] Per the defence, I do not have to proceed beyond the first step i.e. I should believe Mr. Roccia’s account of all material events, leading to an acquittal on all charges. In any case, if steps two or even three are necessary, I should ultimately be left with, at minimum, reasonable doubt of Mr.

Roccia’s guilt on all charges. [ 8 ] Per the Crown, after all three levels of analysis, I should be left with no reasonable doubt on any of the charges i.e. Mr. Roccia should be found guilty of all four. [ 9 ] It is useful to consider our Court of Appeal’s reframing of the W(

D) framework in R v Ryon [2] : … the [jury] charge should impart the following information: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. … (ii) In that context, if the jury [or judicial trier of fact ] believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. … (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit . (iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty . Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.

Finally, where there are included offences or multiple charges, the trial judge must ensure the jury understands that a reasonable doubt with regard to one offence will not necessarily entitle the accused to an acquittal on all charges. C. Accused’s Testimony

[ 10 ] Defence suggested (in part) that I use common sense as my guide: “when you look at a witness’s testimony, you should ask yourself: ‘does this or that make sense?’” [ 11 ] Per the defence (among other submissions), Mr. Roccia’s account made sense, from start to finish: He told us clearly where he was, what he was doing … provided information of what happened as best he could … he told me why he stopped [along the service road], what he did, and why he did it. [About the third (front lawn) encounter] If he was really after [the complainant], why would she testify that [Mr.

Roccia] was talking to the [elderly] gentleman along the lines of “You will never believe what this girl has been up to … running into traffic … you need to keep an eye on her.” [In other words, she herself confirmed that his focus, in the third encounter, was in talking to the man i.e. with no focus on her at all.] [As for his uncertainty about some “time, space, distance” details], I should not forget that these events happened about 2.5 years ago. As well, per a release-related order, [Mr.

Roccia] was not permitted to revisit the scenes, preventing him from refreshing his memory or even (for example) taking measurements of any of the important “distance” aspects. Despite being subjected to rigorous cross-examination, he stood fast and was forthright about what happened in the key hour that day back in June 2018. [ 12 ] Per the Crown, I should largely reject Mr.

Roccia’s account, for these reasons: 1. his evidence was “too scripted and rehearsed … multiple times [the Crown] would ask him for a detail (e.g. a time or a location), and he would not just answer the question. [Instead], he would go through the entire sequence of events, in a very repetitive fashion, [reflecting] rehearsal [of such evidence] … He kept pivoting back to same points.” The Crown acknowledged that it is “stressful to given evidence”, but “his manner of testifying [signaled] a script … despite [varied] questions, he would return again and again to the same narrative”; 2. the accused’s evidence was inherently incredible. “He would have [us] believe that, within the course of one hour, give or take, he had three chance encounters with the complainant: first, at the store as she is running out …; then, a few minutes later, on the service road, where she is (per him) “in his face” demanding a ride, followed by a heated conversation, after which she leaves; and, third, he happens to be driving down a nearby road and sees the complainant with the elderly man.

Then, even though he had only shortly before [cursed her out to get rid of her], he then decided to be a good Samaritan and approach the man, who he assumed was the complainant’s father, without any reason for thinking that other than that they were in proximity, to advise him that he should keep an eye of her, in light of her recent alarming behaviour. What we have here is a case of the accused trying to fit his version of events into the complainant’s version of events, both her 9-1-1 account and her in-court testimony [albeit providing a benign account of his activities throughout].

Moreover, he just happens to be driving by while the complainant is on the phone with [EPS dispatch]. Beyond that, his account of his reaction to the elderly man pushing him in the chest (i.e. despite Mr. Roccia’s well-meaning attempt to advise him of the complainant’s alarming behaviour) is also implausible: he says that he saw an opening to the alley and, to get away from the man (i.e. to avoid a further confrontation), he decided to walk through the property in question, to the back alley, and continue from there to the garden centre i.e. to trespass on the man’s (or apparently the man’

s) property to get away from him [not to mention walking west, away from the garden centre i.e. ending up further away from his destination, needing to then turn north and, ultimately, down the alley, head east to the garden centre]”; and 3. he was a “very evasive witness on the stand.” In cross-examination, the Crown had to repeatedly re-ask questions. Sometimes that may have been attributable to, as the Crown candidly put it, “awkwardly phrased” questions by her. Yet several times, with clear questions, Mr. Roccia would run through the narrative again.

Over and over, she reminded him, with time-estimate questions, that she was not seeking “specific time estimates, only ballpark figures”, and he continually answered that he could not give specific time estimates. He was reluctant to give even ballpark time estimates.

Moreover, when questioned about the complainant’s whereabouts during the third (front lawn) encounter, he said he could not recall where she was, which seems implausible when the (stated) whole reason for him walking over to the yard was to speak to the man about his “apparent daughter.” As well, when being asked about swearing at the complainant (“Did you swear at her?”), he was unable to answer directly, instead providing “justification after justification” i.e. he kept seeking to justify or explain his version of events. [ 13 ] I agree with the Crown’s assessment: Mr.

Roccia’s account is generally not credible, and I disbelieve much of it, for the reasons outlined by the Crown, which I accept and adopt, augmented by the following: 1. Mr.

Roccia testified that he had vehicle trouble (“strange noise from the back of my truck”) as he was driving south in the store parking lot, which continued after he had stopped at 137 th Avenue, waiting for a gap in the traffic to head east, that the noise continued as he initially drove east, that he decided to pull off of 137 th Avenue (the busy thoroughfare), and turned right at the first available right, which was a curved approach into the neighbourhood, forcing him to swing to the west on the service road beside 137 th Avenue and that he stopped his vehicle not far along that road.

He said that he got out of his truck to take a look at the back end of his truck (tires, undercarriage) and that, after crouching or kneeling down to take a look and seeing nothing obviously wrong (among other things, “tires looked okay”), the complainant startled him as he stood up. After being rudely beseeched for a ride and having to curse her out to go away, he testified that, using his phone, he searched for a vehicle-repair shop and, after finding a tire shop down 137 th Avenue at 82 nd Street, he drove there to have his truck looked at.

He told us that, on arrival, he met a shop employee outside the shop, who advised that he could not give Mr. Roccia an appointment (“shop too busy”) but volunteered that he could take a quick look (i.e. outside the shop, in the parking lot) to see if he could see anything wrong. Mr.

Roccia then said that the employee “did something” that fixed the problem, that he thanked the man and offered to pay him, and after being told it was on the house (“come back if you have any other issues”), he drove back west, first to gas up at a Safeway station between 82 nd and 119 th Streets, and then to 119 th Street, to head to the garden centre to buy shrubs for his yard (which had been his original purpose when leaving work that day, before being distracted by a “sale” sign at the store where (as it turned out) the complainant worked and from which she ran out that day.

I focus here on the “truck repair” aspect. Crown questioned Mr. Roccia about which shop he went to; he could not recall. That is not a blemish on his credibility. What is, though, are the following aspects. First, after describing hearing “strange [vehicle] noises” as he drove south out of the parking lot, with noises continuing as he initially drove east along 137 th Avenue, to the extent he felt compelled to pull over to investigate, he said nothing about whether the noise(

s) continued as he drove approximately four kms to the tire shop. With the garden shop within a block or two of where he had stopped (east on 137 th Avenue), and with no evidence of “strange noises” continuing, why did he feel compelled to drive right past the garden shop, continue for four kms to have his truck looked at, before having to drive four kms back again to go to the garden centre?

In any case, even if “strange noises” had continued, with no other particulars provided of his mechanical issues (e.g. tire losing air, steering problems, etc.), again nothing explains why he did not stop at the en-route garden centre before continuing east to have his truck looked at. I note here too that he gave no evidence of his understanding of the tire shop’s hours or feeling any particular time pressure that would explain overshooting the garden centre to go to the tire shop first.

Second is his account of the “repair.” He testified that he did not know what the shop employee did (just that he “leaned down or looked down and did something”) and that he did not even ask the man what he had done. I find it implausible that, after testifying to hearing a “strange noise”, seeing nothing after checking himself, and someone apparently “solving the problem” inside five minutes, Mr. Roccia would not ask: “What did you see? What was wrong?

How did you fix it?” He testified that he was “not mechanical”, but he also testified that, on the service road, doing his own inspection, he checked the “tires … the tailpipe … looked at the shocks … maybe a muffler issue …” That does not make him a mechanic, but does increase the implausibility of him not asking the shop employee what the problem had been and how he fixed it. One would have thought, at minimum, Mr. Roccia would want to know what had caused the “strange noise” and how it had been remedied, in case it happened again.

He also said nothing about the shop employee obtaining his name or any vehicle information, so that the employee could log the repair work. Third, despite stating that the shop employee “fixed the problem”, he did not say with what (own hands, with tools, otherwise) or how he diagnosed the problem and “fixed it”, all inside of five minutes, out in the parking lot. He did not say whether the shop employee happened to have tools with him outside the shop or whether the employee went back to the shop for any tools or equipment.

He did not produce a receipt (direct or indirect e.g. from a credit-card statement) to confirm his gas purchase at Safeway or testify to using cash to pay for gas. I find the entire tire shop account to be unbelievable. 2. I also find the entire “lawn encounter” testimony of Mr. Roccia to be unbelievable.

He testified that, after arriving on 119 th Street to go to the garden centre, he was about to park along the east side of the street, just south of the garden centre, when he noticed the complainant and an “elderly gentlemen … 55 or 60 years old” in the yard of a property on the west side of the street, across from where he ended up parking.

He said that, in view of the complainant’s alarming behaviour he had witnessed earlier (her running out into traffic on 137 th Avenue and off again), he thought he would tell the man, who he thought was her father, that he should “keep an eye on her.” This account is unbelievable. Mr. Roccia could give no reason why he thought the man was the complainant’s father, other than their proximity i.e. standing close to, or relatively close to, each other on the front lawn of the property in question.

He did not even testify that he first asked the man “Are you this woman’s father?” He did testify that he said (effectively) “I’m not sure if this is your daughter but …” before advising him to “keep an eye on her.” Having acknowledged uncertainty here (“is this actually her father?”), why would he not wait to find out before offering his “behaviour report.” This is not believable.

He also did not explain why, having declined to give the complainant a ride, after her pesky requests (per his account), complete with cursing her out (“I am not fucking giving you a ride … fuck off … [and, after noticing her apparently taking a picture of him or his truck or both] … what the fuck are you doing? I told you to fuck off … … I said ‘fuck off’”), he was suddenly so solicitous toward the complainant that he felt compelled to walk up to a complete stranger, assumed to be her father, and give him advice about looking after his (apparent) daughter (“keep an eye on her.”).

This turnabout is completely incredible. Given their (per him) extremely unpleasant interaction just shortly before, it is not credible that Mr. Roccia would choose to park close to the complainant and to perform this “good Samaritan” duty. Next comes the implausible account of the man on the lawn “shoving him in the chest.” If Mr. Roccia had indeed provided helpful and enlightening information to this person, that reaction is hard to understand. Even if the information had had no significance to the person (“Why are you telling me this?”), that (pushing him away) reaction is still hard to understand. If Mr.

Roccia had indeed been intent on delivering important news to this person, presumably he would not simply walked away with the man not apparently “processing” or understanding the information, or at least asking him “Why are you pushing me?” and saying “I’m only trying to help you, and her.” But Mr. Roccia said nothing about any such back-and-forth dialogue, only that the man pushed him and that he (Mr. Roccia) decided to walk away. This is implausible. Same for his account of walking away to “avoid a confrontation.” Per Mr. Roccia, he approached the man and the complainant from the west, where he had parked.

He said nothing about their relative positioning, other than that he had walked over to the man and that the man had pushed him. Yet, he testified that he “saw an opening to the alley” and decided that the best way to get away from a further confrontation was to walk further west, through the property, into the alley, and then head north, and then east again, to get to the garden centre. He called this his “path of least resistance.” Pressed on this by the Crown, he said “There was no way to get off the lawn without passing him … what I felt at that moment is that I could not [otherwise] get off the lawn safely.”

This makes no sense. There was no evidence, from anyone, about fencing or anything restricting anyone’s movements in the front yard of the property in question. It makes no sense that Mr. Roccia, who again said nothing about having ended up west of the man (and the complainant), thought his “get away from confrontation” option was walking west through the balance of the man’s (or apparently the man’

s) property. Given his destination was to the north and east of that front yard, it makes no sense that he would not simply pull back (to the east) and then head north on 119 th Street to the garden centre. The “into the alley and then north, and then back east” option, to avoid the described confrontation, is implausible. Instead, I infer that Mr.

Roccia walked further onto the property, through the back yard, and into the back alley because he saw the police approaching, as confirmed in the 9-1-1 recording of the second call, in which the complainant describes the police driving up as, or very close to the time, Mr. Roccia comes on to the front lawn of the property in question; and 3. I also note that, the first time the Crown suggested to Mr. Roccia that he was not telling the truth, he became very emotional and “un-composed.” I realize that I cannot place undue weight on demeanour evidence, but, coupled with my overall assessment of Mr.

Roccia’s credibility (absent in major respects), his loss of composure on the very first challenge to his credibility is telling, akin to a fragile vessel encountering pack ice and breaking apart on first contact. [ 14 ] I do not believe Mr. Roccia’s account of truck troubles and hence his reason for being on the service road, nor his account of the service-road conversation, nor his account of why he walked over to the complainant and the man, what happened in their interaction, or why he walked through the yard before walking north and east again to the garden centre. [ 15 ] Fundamentally, Mr.

Roccia revealed himself to be untruthful about core events. D. Defence arguments about complainant’s credibility [ 16 ] The defence again invoked common sense and, after pointing to various perceived inconsistencies, gaps, and other shortcomings in the complainant’s evidence, argued that, on any common-sense basis, her overall account is not credible or, at minimum, should raise a reasonable doubt on all four charges. [ 17 ] Here I highlight and comment on those perceived deficiencies. Why would Mr. Roccia have tried to enter the store through blocked doors? [ 18 ] The complainant worked at the store.

She testified she had finished her shift, around 5 pm, and had left to catch her bus at a nearby bus stop (expected arrival 5:15 pm or a minute or two before that). Partway there, she realized she had forgotten her phone, ran back to the store to get it (from an employee area in the back, where she had been charging it), and on her way out encountered Mr. Roccia in the store vestibule, apparently trying to get into the store. Per her, Mr.

Roccia was pushing or pulling at a closed doorway (apparently never used but instead blocked with a “go that way” sign and shopping baskets), instead of walking to the left and into the main body of the store through the actual interior entrance. As she passed by him on the way out, her thoughts (sparked by his futile attempt to enter) were “what an idiot!” [ 19 ] Per Mr.

Roccia, he had driven to the store to check out a sale and, after parking just outside the entrance, was about to enter the store through the exterior doors, when the complainant came tearing out of those doors, carrying a bag with what looked like over- spilling clothes and “bolting” into the parking lot, screaming as she ran.

He said another about-to-enter customer looked at him and said (effectively): “What the fuck is up with that girl?” He said he thought the same thing, and wondered whether she had been shoplifting, given her tearaway pace, the clothing only partly stuffed into her bag, and her general “bizarre” behaviour. [ 20 ] Photos of the exterior doors, interior (blocked) doors, and actual interior entrance (showing the full vestibule) were put into evidence.

From the photos, it is plain that the second-noted doors were indeed fully blocked and that no one paying any attention would attempt to enter the store that way. [ 21 ] Defence argued that the implausibility of Mr. Roccia trying to enter the store that way (coupled with his evidence that he had shopped there many times before) raises a question about the complainant’s credibility. [ 22 ] This may end up being a mystery at the end of the day. But I do not have to solve every mystery or answer every riddle here.

It may be that the complainant, who on both accounts was in a rush to exit and catch her bus, misperceived what Mr. Roccia was doing at the blocked entrance. It may be that, for some reason, even knowing that he could not enter that way, he was at or even touching those doors, maybe looking into the store for something. It may be that, for whatever reason, he was actually tugging at those doors. [ 23 ] In the end, it does not matter.

Why did the complainant head to one bus stop instead of another? [ 24 ] Defence queried the complainant’s testified-to decision to aim for the bus stop at approximately 119 th Street, diagonally to the southeast of the retail store, instead of the straight-south bus stop at 123A Street. But the complainant told us why, and her explanation is sensible. She said that the pedestrian light at 123A Street is one of those slow-to-react lights that can take three or four minutes to change to red, versus the more responsive light at 119th Street. Nothing quizzical or illogical here.

How could the complainant have missed her bus?

[ 25 ] Defence next queries the complainant’s evidence that, after she had crossed 137 th Avenue (to the south), she was running east along the boulevard when she encountered Mr. Roccia, who she described as “popping out of the bushes” (i.e. a treed-and-shrubbed segment of the boulevard), that in response to him asking for directions, she said “no, no, no” while still running (i.e. still intent on catching her bus), that she had not yet seen the bus coming from the west (presumably having looked behind her as she ran east), that she only stopped or slowed down after Mr.

Roccia told her that he needed directions to be able to get to Londonderry Mall to pick up his mom, that she provided quick directions (“continue east on 137 th Avenue … turn left at 66 th Street … can’t miss it”), and that while giving those brief directions, the bus sailed past her, heading east i.e. she missed her bus on account of stopping or slowing down and providing those directions. [ 26 ] I do not see anything quizzical or implausible here.

The complainant was not asked how often she looked back to check for her bus coming or about how much time had passed since she had last looked and not seen it coming. And it was not just a matter of seconds here: she testified that, after his initial request for directions, Mr. Roccia told her that he was not from Edmonton, that he was supposed to pick up his mother at Londonderry Mall, that he did not know where the mall was, and that he needed directions for that purpose.

Even if the balance of their exchange directions-wise was limited to the complainant providing the succinct directions quoted, nothing compels the conclusion, or even signals, that a west-travelling bus could not have overtaken the complainant in this “directions interval.” [ 27 ] I note here too that, when the complainant described the bus sailing past, both in direct and cross, she gestured, with a slight arm and hand movement, consistent with what she was describing i.e. something moving past her.

Why would the complainant agree to accept a ride from a stranger? [ 28 ] Defence was mystified that the complainant, who he characterized as cautious, street-smart, and worldly (assessments she agreed with in cross), agreed to accept a ride from a stranger (after their “directions discussion”) and after she told him that she had (just then) missed her bus and would now be late for dinner), and, moreover, continued to agree, after Mr.

Roccia asked her if she knew where he could buy marijuana. (This also came on the heels of him first saying “I am not a cop … I am not a cop.”) On cross, the complainant agreed that things were not “going the right way” when marijuana came up (“bells were starting to go off”, “I was starting to get apprehensive about this person”), but unaccountably (per the defence) she was still agreeable to travelling with this stranger [ 29 ] Again, I see nothing inherently implausible or puzzling here. The complainant explained that she was still concerned about helping Mr. Roccia connect with his mother.

In questioning about this in cross, she described herself as a “momma’s girl” and said she was moved to help him because “he is not from here[ [i.e. Edmonton].” She said that travelling together would (effectively) be convenient for both of them: Mr. Roccia would receive in-person directions to Londonderry Mall, where he would connect with his mother, and she would receive a ride to, or closer to, her dinner destination (a Boston Pizza in the Clareview area), and with the next bus not due for half an hour, would arrive for her dinner on time (or closer to).

As she described it in cross, “I was not [scared to get in the truck with him] … I felt I was a good citizen by showing him where Londonderry was … to find his mom.” [ 30 ] As well, the complainant testified that Mr. Roccia told her he would pay $50 for putting him in touch with a “marijuana contact.” The complainant testified that this was an additional incentive for travelling with Mr. Roccia: “there was my dinner paid for!” [ 31 ] In any case, even if continuing to agree to travel with Mr. Roccia appears unwise in retrospect, that does not make her account implausible or even signal that way.

Even cautious people sometimes let down their guard. Shouldn’t the “Calgary” and “no ID” discussions have dissuaded her? [ 32 ] Defence pointed to two further discussion elements, per the complainant’s account later provided to police but not mentioned by her during direct examination, that further undercut the plausibility of continued willingness to travel with Mr. Roccia. [ 33 ] First, she recalled that, having sensed the wrong “vibe” from the “marijuana” question, she asked Mr. Roccia where he was from (“Calgary”) and then “what part?” According to her, he hemmed and hawed and, in the end, did not answer.

She was then reminded that she had also asked Mr. Roccia for ID and that he responded: “I don’t carry ID with me all the time.” [ 34 ] She testified that these responses increased her apprehension (“started getting shady for me” … “even more like definitely something wrong here”). Yet, she was still willing to travel with him. Per the defence, that is “extremely troubling.” [ 35 ] Not so: she also testified, in cross on these points, that she herself is guarded about telling people, even acquaintances, her address. She said that she thought that Mr.

Roccia, too, was being guarded about the details of his home address. She testified: “I thought that [possible guardedness] is why he was delaying … why he would not answer.” [ 36 ] As for “no ID”, she acknowledged feeling more apprehensive, but emphasized that she was still concerned about helping reunite him with his mother and also about getting to her dinner on time. [ 37 ] In hindsight, her continued willingness (at least to that point in their dealings) to travel with him may seem naïve. But that does not undercut her credibility. Here was a good Samaritan, who thought her good deed (helping Mr.

Roccia connect with his mother) would yield a side benefit i.e. a ride to, or closer to, her dinner engagement. [ 38 ] I am not prepared to find that an account of willingness to help a stranger, even one presenting as here (not willing to divulge address particulars, not carrying ID), rings as implausible or even signals in that direction. [ 39 ] Per her, Mr. Roccia’s core request (“please help me reconnect with my mother”) echoed throughout their dealings to this point.

It was the loudest note struck here, and it effectively drowned out any discordant notes, but that is not a mark against the complainant’s credibility.

Why didn’t the complainant just take a cab to get to her dinner? [ 40 ] Along the same lines, defence asserted that, with the complainant being aware (as reflected in the 9-1-1 call (discussed further below)) of the possibility of taking a cab to get around and, specifically, to her dinner, and with her acknowledging that she had sufficient money that day to pay for a cab trip, her election to accept a ride from Mr. Roccia, instead of taking a cab, is not believable. [ 41 ] I disagree, for the same reasons outlined above.

Effectively, she had an opportunity to help someone out (with in-person directions) and, at the same time, get a free ride to, or close to, her destination. [ 42 ] Even with alarm bells sounding (marijuana request, not disclosing address particulars, not carrying ID), the complainant still felt the tug of “help him reconnect with mother” and “get to my dinner,” [ 43 ] As stated above, this may reflect naivete about her personal safety, but it does not diminish her credibility. What about critical omissions in the complainant’s “9-1-1 call” account? [ 44 ] In her trial account, after she broke free of Mr.

Roccia’s grasp, the complainant eventually ran (after darting out onto 137 th Avenue and then off again) into the neighbourhood south of 137 th Avenue, eventually hiding in an alley and calling 9-1-1. [ 45 ] We listened to the complainant’s initial 9-1-1 call and to a second call (about 20 minutes later) which she made at first to complain about how long it was taking the police to arrive and which captures her account of Mr.

Roccia coming back into view, up close to her, and then walking into the backyard of the property where she had spent most of the waiting-for-police interval. [ 46 ] The defence’s primary point here was that, in neither call did the complainant volunteer information, in providing her account of what had happened to her, about Mr. Roccia trying to pull or drag her anywhere, let alone his truck.

It was only after four-times- prompting by a 9-1-1 officer (“Was he trying to pull you into his truck”, or words to that effect) that she answered (on the fourth inquiry) “yes.” [ 47 ] That point goes to the attempted kidnapping charge, primarily, which I will discuss further below.

The omission of “pulling/dragging” details in her initial 9-1-1- account and the leading nature of the police questions about that during the call do not cast any shadow her the rest of her account, whether during the call or at trial. [ 48 ] Defence’s second point here was that, during the first 9-1-1 call (initial), the complainant described a “tiny little bruise” from Mr. Roccia grabbing her. It contrasted that evidence to that of Cst. Corrin, one of two officers to arrive on scene at the residential property where Mr. Roccia encountered the complainant and the elderly gentlemen.

At some point during the on-scene questioning of both Mr. Roccia and the complainant or while driving the complainant to her dinner destination (per her request), Cst. Corrin said he examined the complainant’s left wrist (the wrist she said Mr. Roccia grabbed) and said he noticed nothing except “a thin red line”, apparently caused by the complainant’s watch being worn on a hot summer day. [ 49 ] I do not see the complainant’s self-assessment (“tiny little bruise”), provided in the middle of a panicked 9-1-1 call (as discussed further below), after (per her account) of having been grabbed by the wrist by Mr.

Roccia and only freeing herself after “wind- milling” her left arm, constitutes a blemish on her credibility, even with Cst. Corrin’s testimony (discussed above). Even if, in the heat of the moment, she misdescribed the visible extent of her injury from this wrist-grab (and she only referred to a “tiny little bruise”), photos put into evidence from two days later of the complainant’s left wrist indeed showing visible bruising. This is consistent with having been grabbed by the wrist two days earlier and not inconsistent with her initial (“tiny little bruise”) description or Cst.

Corrin’s account of not seeing bruising in the immediate aftermath (within approximately 30 minutes) of the described assault i.e. with bruising only showing later. [ 50 ] I take judicial notice that bruises do not necessarily appear immediately after the application of force. [3] Why did the complainant not escape better? [ 51 ] The defence then characterized as unintelligible the complainant’s escape route, if she had indeed been assaulted by Mr. Roccia. As Mr.

Roccia himself described it, the complainant indeed ran away from him, after (per him) he had declined to give her a ride and “cursed her out”, with her heading initially north across the boulevard between the service road where he had parked and 137 th Avenue and then out onto the eastbound lanes of 137 th Avenue, where she stopped traffic and cars were honking at her.

He then saw her reverse course and run back to the south, eventually out of his sight, into the neighbourhood. [ 52 ] Per the complainant, after she had “wind-milled” herself free, she indeed ran onto 137 th Avenue in a panic and traffic indeed came to a stop just west of her.

She said that one of the stopped vehicles was a yellow school bus and that her first thought, on seeing it, was that “I don’t want to traumatize the kids on that bus by asking the driver for help or otherwise attracting their attention”, before she ran back off the road and south into the neighbourhood. [ 53 ] Here the defence primarily impugned the “soundness” of the complainant’s escape from Mr. Roccia: “why would someone trying to get away from a person run back in that person’s direction after initially running away?’ [ 54 ] But Mr.

Roccia testified that the complainant was about “half a block to the east of him” when she ran onto and then off of 137 th Avenue, before going south. [ 55 ] On the “run right back to him” aspect, it is plain, from the available evidence, that the complainant actually got away from

Mr. Roccia, which is presumably the truest gauge of the “reasonableness” of her getaway (if such a “test” even applies). Why did the complainant not ask for help from others nearby? [ 56 ] In her police statement, the complainant referred to “two Muslim ladies” who were “nearby” the location of her interaction with Mr. Roccia.

Defence queried: “Why did she not ask them for help, and same for drivers who stopped when she initially ran out onto 137 th Avenue?” And: “Why did she not keep running north i.e. across the 137 th Avenue median and (eventually) across the west-bound lanes i.e. back to the shopping area?” [ 57 ] This is another “reasonableness of escape” critique that provides, with the benefit of hindsight, other options the complainant might have pursued. [ 58 ] Give her panicked state, I do not see her actual escape route, even posing the risk of being hit by a car on 137 th Avenue, and even electing not to call on other persons nearby, as unreasonable or, in any case, as bearing on her credibility in any way.

What about her differing perceptions of why Mr. Roccia moved towards her (encounter #2)? [ 59 ] Defence noted that, in her police statement, the complainant said she thought Mr. Roccia ran after her to get her phone, in light of her having just apparently (in his eyes) snapped a photo of his truck.

It contrasted this to her initial cross-examination testimony (effectively, “he was going to kidnap me”) and pointed to her eventually acknowledging, on cross, that it was equally “plausible” that he was coming after her phone i.e. not her. [ 60 ] This goes only, or largely, to the attempted-kidnapping charge, to which I will return later. What about Cst. Corrin’s testimony that the complainant passed up many chances to provide a statement on the day of the incident? [ 61 ] Cst.

Corrin indeed testified that, whether during his initial “on site” discussions with the complainant, on the drove from there to drop off the complainant, or perhaps both, he offered her many opportunities to provide a statement, and this after explaining that, without a statement, the police would likely be unable to proceed with charges or at least further in their investigation. Yet, she declined all these opportunities.

In the end, she only wanted to leave the scene and get to her dinner engagement. [ 62 ] Defence contrasted this to the complainant’s testimony that the police “did nothing for her” and this despite her “wanting to proceed [i.e. with charges]” and “to do something [about the incident].” [ 63 ] The complainant testified that she was “livid” about the police allowing Mr. Roccia to leave the scene i.e. that they did not arrest him on the spot.

She added that, by this point, all she wanted to do is get away from the scene and on to her dinner date with friends. [ 64 ] Given her immediate post-incident state i.e. per the 9-1-1 recording, her obvious fear and alarm as she described Mr. Roccia’s return (i.e. the third encounter), coupled with her anger at the police, as well as her realization, triggered by realizing that Mr.

Roccia was the “guy from the entrance to [the retail store]” and the accompanying understanding (as she saw it) of his stalking since that point, it is not surprising that her account that the “police did nothing” does not square, at first glance, with the police account. Her account of wanting to do “do something” and “to proceed” certainly squares with her angry reaction to Mr. Roccia’s on-site release and, eventually to her willingness (no later than two days later) to provide a statement.

As well, as Crown submitted, she may have understood that, in providing her account to the police at the scene, she had already “provided a statement” i.e. what else did the officers expect from her? [ 65 ] In any case, she acknowledged in cross that, indeed the officers (or at least Cst Corrin) had offered her many opportunities to provide a statement. [ 66 ] In end there is no great mystery or, in any case, credibility-shadowing here: I find that the complainant was exceptionally rattled (by the afternoon’s events) and exceptionally angry (about the apparent “walk” of Mr.

Roccia) and, given those combined states, the officer’s invitations or requests to make a statement apparently not “hitting home” is not surprising: she just needed to get away from everything at that point. [ 67 ] As it was, she was prepared to, and did, give a statement two days later. And her delay in making the statement should not, on its own, cast any shadow on her credibility. Conclusion on complainant’s credibility [ 68 ] Even aggregating all of the defence’s credibility concerns, I find the complainant to have been a credible witness.

I accept her account of the service-road encounter and the front-lawn encounter. [ 69 ] She was somewhat of a fragile witness, telling us right off that she suffers from epilepsy (including petit mal seizures) and that she sometimes “zones out”, especially when under stress. [ 70 ] She was often slow to respond and sometimes needed questions repeated.

[ 71 ] At times, she showed visible emotion, particularly when testifying about the more harrowing parts of the encounters (being asked if she would have sex for money, being chased, and seeing Mr. Roccia come up to her on the lawn). Her emotional reactions were consistent with the harrowing character of the events she testified about.

For example, she was visibly upset in recalling the “proposition for sex for money” aspect, saying “I was pissed … really, really upset, because I felt like I did not give off that vibe … not giving any indication that I was offering myself for sex.” Same for when she recalled what she called him for making that offer (“a fucking perv!”). [ 72 ] She had to take many breaks, often simply sitting down in the witness box to compose herself before standing up and saying “I’m ready to continue.” [ 73 ] On two occasions, she almost fell down, from the witness box, catching herself before she fell. [ 74 ] Testifying was an ordeal for her. [ 75 ] But I find that she was struggling, throughout, to do her best to tell the truth and to be as accurate, and as fair, as possible. [ 76 ] She was consistent, in direct and in cross, about the core elements of what happened that day. [ 77 ] She acknowledged when she did not know something. [ 78 ] She conceded things that, effectively, had to be conceded (e.g. acknowledging that she had, indeed, been invited, many times, to provide a statement either at the last scene or during the squad-car ride to her dinner). [ 79 ] Her account was not “unilateral”: she provided details that might be seen a favourable to Mr.

Roccia. For instance, she testified that, after he asked her about sex for money, and that she recoiled (“no, no, no!”), he said “That’s okay … just help me find some weed then” (or words to that effect). That is, she was prepared to acknowledge a detail reflecting a step-down in Mr.

Roccia’s negative behaviour. [ 80 ] She was careful about dates, one time catching, and correcting, defence counsel about a June 19 th reference actually being to June 21 st . [ 81 ] She was patient and earnest throughout, enduring many “geography” questions. (It seemed to take almost an hour to get everyone to understand the lay-out of the streets and avenues around encounters two and three.) [ 82 ] She was polite, thanking the lawyers and the Court for being patient with her, including accommodating her many requests for brief time-outs. [ 83 ] Overall her account made sense, making understandable, or more understandable, her decision to take a picture of Mr.

Roccia’s truck (with licence plate), her panicked run out onto 137 th Avenue, her described-in-the-9-1-1-call decision to hide in the alley behind a garbage can, and her fearful reaction, captured in the second 9-1-1 call, to Mr. Roccia’s return (via truck) and to him coming over the property where she was waiting for police. E. Impact of 9-1-1 calls [ 84 ] We heard audio recordings of two 9-1-1 calls made by the complainant, the first from the back alley into which she ran after getting away from Mr.

Roccia, the second from the front of that property, after she had circled around the block to wait for the police to arrive. [ 85 ] On the first call, the complainant’s distress and upset is obvious. Here is an excerpt from the start of the call: June 19, 2018 -- 17:17:21: … Hello … [need] police … Um, I’m in a back alley; I ran away from some guy who asked me for sex … [address discussion] … Q: you said a man asked you for sex?

Yeah, so I took a picture of his license plate and he chased after me, so I’m hiding behind a house [more re location] … I’m hiding in a back alley … [he] went to chase me down … hold on … need to catch my breath … [about 1.5 minutes later, after the 9-1-1 operator transferred to call to EPS] … this guy … grabbed my arm …. [ 86 ] During this opening segment (at minimum), the complainant was plainly in a panicked, frantic state. She is out of breath, speaking quickly, almost blurting out her “back alley … guy asked me for sex” statement.

Her voice throughout the excerpted portion reflects agitation and upset. [ 87 ] On the second call, placed about 20 minutes later, the complainant complains about the non-arrival of the police and says that, if they do not arrive soon, she will leave the property in question, via cab. During that call, we heard her describe Mr. Roccia’s return to the street, first as he drove by, to the south, and then when he returned, parking his vehicle, across the street from where she was, and then exiting his vehicle and walking across the street towards her.

During these segments, the panic and anxiety return to her voice, including one notable segment whether she repeats a syllable four or five times (“yo-yo-yo-yo-yo”), in staccato fashion, reflecting great alarm at what she is witnessing i.e. the return of the man who had propositioned and assaulted her earlier. [ 88 ] The first call also includes the complainant’s statement that the “man” asked her, before asking about sex for money, how old she was. (I note that that the complainant, 29 at the time of trial, was 26 when this happened; I also note that she has a slight build and a youthful appearance.) I find that this question was part of Mr.

Roccia’s “feeling out” the complainant i.e. before making his “sex for money” proposition. [ 89 ] I find that the obviously-charged-with-emotion segments of the 9-1-1 calls qualify as res gestae as explained by our Court of Appeal in DLD [4] :

Excited utterances have been received in instances such as when made in the course of a 911 telephone call: Sylvain and R v Villeda,2011 ABCA 85, 502 AR 83, at para 22. The criteria for the admission of excited utterances were summarized by the Ontario Court ofAppeal in R v Nicholas, (2004) (ON CA), 184 OAC 139, 182 CCC (3d) 393, at para 88: [A] spontaneous statement made under the stress of pressure of a dramatic or startling act or event and relating to such an occasion maybe admissible as an exception to the hearsay rule.

The stress or pressure of the act or event must be such that the possibility of concoctionof deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress orpressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility ofsuch statements is dependent on the possibility of concoction or fabrication.

Where the spontaneity of the statement is clear and thedanger of fabrication is remote, the evidence should be received. [90] As we discussed during the trial, statements qualifying as res gestae are not automatically “gold”, forged in the crucible ofpanic, anxiety or terror and to be regarded, as a result, as incontrovertibly accurate reflections of the reality described.

But they can be,and they are here, I find, useful pieces of evidence, helping illuminate what really happened here. [91] I find that these very fresh-after-the-incident and flushed-with-panic comments corroborate the accuracy of the complainant’saccount of having been propositioned (sex for money) by Mr. Roccia and having been grabbed by him. F. Constable Corrin’s testimony [92] Beyond the wrist-examination and opportunities-to-give-a-statement aspects already discussed, Cst.

Corrin also confirmed thecomplainant’s emotional turmoil, as he saw it, on his arrival at the property in question: “she came from behind a nearby vehicle ... shewas hiding … very distraught … scared …” G. Charges [93] As noted, the charges are attempted kidnapping, assault, communicating for the purpose of obtaining sexual services forconsideration, and criminal harassment. [94] I am not convinced beyond a reasonable doubt on the attempted kidnapping charge (ss. 279 and 463 CCC). Applying theinterpretation of kidnapping in R v Vu[5], I am not certain, on the required standard, that Mr.

Roccia actually pulled the complainantaway from where he grabbed her or that he tried to do that.

She described pulling, but I was left unclear about the direction (in thedirection of the truck, other “compass” direction, up, down, or otherwise), especially with her testimony that she began “wind-milling”her left arm, eventually breaking free. [95] With unclear testimony about the “directionality” of the pulling and whether the complainant was actually pulled, versus onlyfeeling a pulling force (i.e. not actually being bodily pulled anywhere or even having her arm or hand actually moved), with herresistance “neutralizing” the pulling force, I am not satisfied, on the required standard, that any “pulling” or other forced movementsatisfying the “attempted kidnapping” definition occurred. [96] Here I note as well that the complainant’s testified-to belief that Mr.

Roccia was trying to pull her “towards his truck” isinsufficient to convert the “particulars uncertain” pulling described above into attempted kidnapping. I also note her initial “no”responses when asked by the 9-1-1 operator (or EPS officer on the phone) if the “man” had tried pulling her into or towards his truck. [97] I also note the “partial phone genesis” of the service-road altercation and that it may be that Mr.

Roccia was not trying to pullthe complainant anywhere but, instead, was trying to take possession of or otherwise get to her phone. [98] On the remaining charges, I have considered, and rejected, the defendant’s evidence of “no assault, no communication for thepurpose, no harassment.” I also find that his evidence leaves me with no reasonable doubt on those charges. [99] Having reviewed all of the evidence, I continue to find that I have no reasonable doubt on of Mr. Roccia’s guilt on theremaining charges. [100] On the assault charge (ss. 265-266 CCC), the defence argued, first, that no contact occurred at all.

I have rejected thataccount. As a back-up, it pointed to the complainant’s “tiny little bruise” statement on the 9-1-1 call and contrasted these to Cst Corrin’s“could not see anything except perhaps ‘watch marks’ on her wrist” evidence. [101] Yet we saw photos in evidence, taken two days after the incident, reflecting obvious bruising of the complainant’s left wrist. [102] I have already explained the absence of material inconsistency between a “tiny little bruise” and a “thin red line”, even if CstCorrin assessed the latter (non-medically) as a “watch mark.

I have also already recognized the phenomenon, which occurred here, ofbruising emerging after the immediate events. [103] In any case, assault does not require bruising or any particular “lasting effect.” [104] I find that Mr. Roccia indeed assaulted the complainant when he grabbed her by the left wrist that day. [105] On the communication for the purpose of a sexual transaction charge (s. 286.1 CCC), I find that Mr. Roccia indeed intendedto, and did, ask the complainant if she would have sex with him for money.

This communication is what terminated the almost-in-progress ride and sparked the complainant’s backing away from the truck, her photograph of it, and her run to the east.

[ 106 ] Finally, on criminal harassment (s. 264), the Crown pointed to paragraphs (

a) or (d), or both of them i.e. coupled with the core elements of the offence in ss. 264(1). (

a) repeatedly following from place to place the other person …; [and] (

d) engaging in threatening conduct directed at the other person …. [ 107 ] I have already found that Mr. Roccia behaved as the complainant described in the service-road incident (ultimately propositioning her (“sex for money”), running after her, and grabbing her) and I infer that, after she ran away, he went looking for her in the neighbourhood, driving around until he found her, on the front lawn of the property described.

In any case, I find that he parked his truck and got out of it and walked over to where she was with the purpose not to give helpful advice to her ostensible parent or for any other innocent or benign purpose but, instead, to have some kind of unwelcome interaction with her, possibly to take her phone or at least to somehow delete, or arrange for the deletion of, the photo of his truck and was only diverted from that intended course (i.e. some kind of unwelcome interaction) by the arrival of the police, sparking him to walk away from her and into the backyard of the property.

In other words, he followed up, within no more than 30 or so minutes of the first alarming and upsetting (to her) interaction, with a second interaction, equally if not more alarming to her, as reflected in her animated-by-fear commentary about his third-encounter movements during the second 9-1-1 call. [ 108 ] Even that is insufficient to satisfy the (

d) element, I find that, in any case, it is sufficient to satisfy the (

a) element. [ 109 ] In either case, or if both provisions apply, I also find that the core definition elements in ss. 264(1) are also satisfied by the facts here i.e. “without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety ….” H. Conclusion [ 110 ] This was a case featuring (in part) “first impressions.” The complainant perceived that Mr.

Roccia was trying to get through the never-used and obviously-blocked interior north doors in the store, thinking he was “an idiot” for doing so. [ 111 ] In the end, while it does not make much difference, I think Mr. Roccia was probably not trying to enter via those doors. I think the complainant was mistaken about what he was actually up to in the vestibule, if he was in there at all when she passed through. [ 112 ] The other mistaken impression, a much more serious one, was Mr. Roccia’s read of the complainant.

His first assessment, as she “bolted” from the store, is that she was “bizarre.” (He used that word many times to describe her.) What I conclude actually happened on the service road, per the complainant, is that Mr.

Roccia, following up on his perception of her as a “bizarre” person, and after initially engaging her sympathies with a “need to connect with mother … not from here … she’s at Londonderry” story, and then progressing through “I’m not a cop ... do you know where I can get marijuana?” messages, and finding that the complainant was not put off by them, decided, after asking how old she was, that she would be open to a “sex for money” transaction. [ 113 ] That was a fundamental misread: the complainant was repulsed by that suggestion, sparking the reactions and counter-reactions described above. [ 114 ] Mr.

Roccia was wrong about the complainant. His mistaken impression has more serious consequences than the complainant’s possible (and in the end meaningless) misread of him at the door of the store. [ 115 ] For all these reasons, I find Mr. Roccia guilty of communicating for the purpose of obtaining sexual services for consideration, assault, and criminal harassment, and I acquit him of attempted kidnapping. Heard on the 2 nd day of December, 2020 to the 4 th day of December, 2020. Dated at the City of Edmonton, Alberta this 10 th day of December, 2020. M. J. Lema J.C.Q.B.A.

Appearances: Katherine Fraser Crown Prosecutor’s Office for the Crown

J.H. Jake Chadi Chadi & Company for the Accused [3] See, for example, this excerpt from R v EC , 2018 YKSC 37 at paras 52-53 : “ Dr. Jamieson observed a significant bruise on A.V.'s right arm. She stated that if a significant vein is affected a bruise may manifest itself within a few hours. Others might take a few days. Dr.

Jamieson said that she was not surprised that further bruising might manifest later after her immediate examination .” See also R v O’Reilly , 2019 ABPC 138 (B Fraser PCJ) at para 26 : “It is likely some of the bruising to her face might not be visible to the officer immediately after the altercation as bruising and discolouration takes some time to develop .” To the same effect, see also Scala v Toronto Police Service Board , 2019 ONSC 2239 (Sanfilippo J.) at para 130 and R v Othman , 2018 ONCA 1073 at para 30 .