R. v. Musiwa, 2018 ONCJ 69

ONTARIO COURT OF JUSTICE CITATION: R. v. Musiwa , 2018 ONCJ 69 DATE: 2018 01 29 COURT FILE No.: Brampton 3111 998 15 7068 BETWEEN: HER MAJESTY THE QUEEN — AND — ADESEGUN MUSIWA Before Justice G.P. Renwick Heard on 22, 23, 24 January 2018 Reasons for Judgment released on 29 January 2018 N. Engineer........................................................................................... counsel for the Crown The defendant Adesegun Musiwa.......................................................... on his own behalf RENWICK J.: INTRODUCTION [ 1 ] Mr.

Musiwa faces one count of criminal harassment, alleging that during the relevant time period the defendant repeatedly communicated with the complainant, Renata Bellio, thereby causing her to reasonably fear for her safety. The burden rests with the prosecution to prove this allegation beyond a reasonable doubt. If the prosecutor fails to meet this burden, the defendant must be acquitted. [ 2 ] To prove the defendant guilty the prosecution needs to satisfy me beyond a reasonable doubt of the essential elements of this offence. These are: i. Without legal authority, Mr. Musiwa repeatedly communicated with Ms.

Bellio; and ii. Mr. Musiwa knew or was reckless as to whether Ms. Bellio was harassed; and iii. The repeated communication caused Ms. Bellio to reasonably fear for her safety. [ 3 ] The prosecution called several witnesses, including the complainant, and the defendant testified during this trial. This case raises several issues in respect of the credibility of witnesses and how I must approach the evidence in this case.

In assessing witness credibility I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth

and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. [ 4 ] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case.

If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony. [ 5 ] The role of confirmatory and contradictory evidence can also be important when assessing the evidence of witnesses. However, confirmatory evidence in particular need not directly implicate the defendant or confirm the prosecution’s theory in every respect. Rather, the confirmatory evidence should be capable of supporting the relevant aspects of the witness' account. THE EVIDENCE [ 6 ] I do not propose to recount the evidence in any detail.

Suffice it to say, I have reviewed all of the evidence and I have taken into account all of the submissions made by both sides. In this

section I will discuss my views of the evidence, in aid of understanding my ultimate findings. [ 7 ] The complainant testified about her several interactions with the defendant while she was working in a chocolate shop at a local mall. Initially, she had positive dealings with the defendant, but due to the defendant’s sexual comments, it became obvious that he was more interested in making things personal than in making a purchase. Ms. Bellio described three incidents which formed the basis for the criminal allegation. [ 8 ] The complainant testified in a believable and balanced manner.

I did not see any signs of exaggeration in her evidence and she was consistent throughout. I find that Ms. Bellio was candid in cross-examination conducted by the counsel appointed for that purpose. Quite fairly, Ms. Bellio admitted that on 03 May she did not contact security when the defendant was in the store, at no time did she ever ask the defendant to leave the store, nor did she ever specifically tell the defendant that he was not welcome to return. [ 9 ] The parties agreed that the defendant could also cross-examine the complainant. During cross-examination by the defendant, Ms.

Bellio confirmed that she never made any complaint to the police until the day after she saw the defendant outside her apartment building, and she did not recall whether he was wearing glasses when she saw him standing there. [1] [ 10 ] There were moments during her testimony when the complainant seemed exasperated by the defendant and his cross- examination of her. This was not often and it seemed both genuine and reasonable.

Perhaps due to his ignorance of the law, the defendant had to be reminded on several occasions to ask pertinent questions that may bear on the issues before the court or the credibility of the complainant. Ms. Bellio’s occasional impatience with the defendant did not detract from her overall credibility. [ 11 ] The defendant suggested a motive for the complainant to fabricate her evidence. During his testimony, he told the court that his great-grandfather had helped the British defeat the Germans in the Second World War. The defendant believed that the complainant has a German middle name.

Also, the defendant claimed that he had been shot at by someone in a helicopter outside the mall and he was trying to link Ms. Bellio to that shooting. He posited that she fabricated the complaint of harassment to create an “alibi” for the shooting. [ 12 ] The defendant’s theory is without foundation or merit. There is no evidence to support any part of the defendant’s beliefs. I find that Ms. Bellio had no motive to fabricate her evidence. Nor is there any evidence that Ms. Bellio fabricated her testimony.

To the contrary, the defendant admitted several facts that supported her version of events. [ 13 ] For example, during his testimony the defendant admitted that he asked the complainant out for dinner. He explained that this was merely a business proposal, but nonetheless, it revealed his interest in spending time with her. As well, the defendant described a time when Ms. Bellio bent over for some reason while serving him. The defendant described this as “inappropriate,” because he could see down her shirt.

I find that the defendant’s characterization of this event revealed an interest in the complainant, beyond the pretext of a retail transaction. [ 14 ] I accept Ms. Bellio’s evidence as truthful in all respects. Ms. Bellio did nothing to encourage or solicit any unwanted attention from the defendant. She was trying to be courteous and friendly in serving the defendant while he was a patron in the store.

[ 15 ] Mr. Musiwa testified on his own behalf. He admits having several interactions with the complainant, however, he completely denied any impropriety, sexual remarks, or interest in the complainant. The defendant explained that he was operating a printing business and he was merely seeking to obtain a contract from the complainant to print her wedding materials. [ 16 ] At times, the defendant’s evidence made no sense.

For instance, he claimed that when he offered to do the printing for her wedding, when she asked how he might be able to do that he explained that his great-grandfather was the Emperor of Nigeria and that his great grandfather had helped the British defeat the Germans during the Second World War. He testified that he then saw the expression on the complainant’s face, and the next thing he heard, she called him a despicable racial epithet, which I will not repeat. [ 17 ] I completely reject the defendant’s testimony of this event. It is incredible, unreasonable, and without any corroboration.

The complainant was asked if she ever discussed the defendant’s printing business and she had no memory of that. She was never asked if she had ever used that epithet to address the defendant. [2] It is not reasonable that she was not otherwise disrespectful, but on this occasion she uttered such a hateful word in response to a request to do some printing for her. [ 18 ] Due to the unbelievable claims of the defendant (Ms.

Bellio was connected to the assassination of his father and the attempted shooting of the defendant from a helicopter, are two examples), I am unable to accept any of his evidence, except where it was corroborated by another witness. ANALYSIS [ 19 ] As always, a burden rests upon the prosecution to satisfy the court that the allegation and all necessary elements of the offence have been proven beyond a reasonable doubt.

If the prosecution fails in any respect, the presumption of innocence is not displaced and the defendant is to be acquitted. [ 20 ] In assessing the credibility of the witnesses in this case, I must apply the principles articulated by the Supreme Court of Canada in R. v. W.D. , [3] as applied by subsequent cases and explained by academic commentary: i. I cannot properly resolve this case by deciding which conflicting version of events is preferred; ii. If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the accused; iii.

Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted; iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt, and v.

Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant’s guilt beyond a reasonable doubt. [4] [ 21 ] Reasonable doubt lies much closer to proof to an absolute certainty than it does to proof on a balance of probabilities. [5] [ 22 ] In respect of the specific allegation before the court, I cannot find the defendant guilty of this offence unless I am satisfied beyond a reasonable doubt that he knew or he was reckless to the fact that the complainant no longer wanted to communicate with him, that continuing to do so would harass her, that he persisted in this conduct without lawful authority, and it caused her to reasonably fear for her safety.

In essence, I have to be satisfied to the requisite degree that the defendant deliberately returned to the store where Ms.

Bellio worked without lawful authority for the purpose of harassing her, or he was reckless as to whether or not it had this effect upon her, his conduct scared her, and her fear was not unreasonable in all of the circumstances. [ 23 ] For the reasons already stated, in terms of what actually took place during their various interactions, I fully accept the evidence of the complainant and completely reject the defendant’s accounts of these events. [ 24 ] Based upon the defendant’s demeanor in court over three days, his questioning of the complainant, his

interpretation of his interactions with the complainant, and his wild accounts of events surrounding this allegation, I find that the defendant is unsophisticated, socially awkward, and apt to misinterpret social cues or actual events. By the defendant’s questions, testimony, linguistic references and historical claims, I find that the defendant was not born in Canada and I accept that he may be unfamiliar with the subtleties and cultural norms of dating.

[ 25 ] To some extent, this may explain his failure to read the signs of Ms. Bellio’s lack of interest in him. However, it does not explain the defendant’s argumentative tone, his insistence with providing his contact information to the complainant despite her request that he not do so, and his repeated attempts to persuade her to show some interest in him. The defendant conducted himself without regard for the plainly obvious signs that Ms.

Bellio was becoming frustrated by his successive overtures and she had on more than one occasion completely removed herself from the premises to signal her distress. [ 26 ] With respect to the issue of lawful authority, on the basis of all of the evidence, I find that not only was the defendant without any authority to repeatedly communicate with Ms. Bellio, but he was the subject of a trespass notice on 18 April 2015 which banned him from attending the library at that mall, and possibly the entire mall as well.

Unfortunately, the evidence of the mall security guard was incomplete as to the expiration, if any, and the geographical limits of the trespass notice. Nonetheless, there was no lawful authority suggested for the defendant’s repeated communications with the complainant. I note that in most cases, the defendant was not at the store for any legitimate commercial purpose, but rather Ms. Bellio’s workplace became the defendant’s social scene. [ 27 ] I find that Ms. Bellio reasonably feared for her safety in all of the circumstances, for the following reasons: i.

The defendant was a virtual stranger to the complainant. Although she had met him several times in her capacity as a store clerk, she did not know anything about his character or background; ii. The defendant made unwanted, unsolicited, unanticipated sexual remarks in the context of a chocolate purchase, while the complainant was alone, just before the closing of the store, moments before she would have to leave the mall and walk to her car; iii. The defendant insisted that the complainant did not have a boyfriend, contrary to her assertions; iv.

The defendant raised his voice at the complainant when she rebuffed him; v. The defendant returned to the store on 03 May 2015, without any apparent legitimate consumer interest, after two prior occasions where he had made unsolicited and unrequited sexual advances of the complainant; and vi. The defendant appeared to be crying when he asked the complainant why she had never called him. [ 28 ] In all of the circumstances, I am satisfied beyond a reasonable doubt that the defendant committed the actus reus of this offence.

I am not left in any state of uncertainty in consideration of my acceptance of the complainant’s evidence and my rejection of the defendant’s alternative explanations. As a result of the evidence I do accept, I am not left in a state of reasonable doubt about the defendant’s conduct or its affect upon the complainant. [ 29 ] Did the defendant repeatedly communicate with Ms. Bellio with the knowledge that he was harassing her, or was he reckless to that possibility? I do not find that the defendant knowingly continued on a pattern of conduct with the goal that Ms. Bellio would feel harassed.

But that is not the point. This is an offence of general intent. If I am satisfied beyond a reasonable doubt of the defendant’s intention to repeatedly communicate with Ms. Bellio with an awareness or recklessness that this was harassing her, the requisite mental state is made out. [ 30 ] I find that the defendant was generally ignorant as to the effect his repeated communications had upon the complainant. Again, his naivety or social limitations may account for this. Nonetheless, the defendant recklessly persisted in conduct without regard for the effect this was having on the complainant.

He was persistent and he failed to acknowledge or give any significance to her unambiguous rejections of his sexual desires, her refusal to provide her name and contact information, and her repeated references to her boyfriend. These were all clues as to how his advances were perceived by Ms. Bellio. She left the store twice just to get rid of him. The defendant disregarded all of these obvious signs and continued his communications with the complainant.

In this way, I am satisfied beyond a reasonable doubt that the defendant recklessly, deliberately, repeatedly communicated with the complainant to the point that she was harassed, and she reasonably feared for her safety as a result. CONCLUSION [ 31 ] For the foregoing reasons, I am satisfied that Adesegun Musiwa committed this offence and I find you guilty as charged.

Released: 29 January 2018 Justice G. Paul Renwick