R. v. Victoria-Penuela, 2011 ONCJ 572

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a ) (

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto 09/10013987-00 Citation: R. v. Victoria-Penuela , 2011 ONCJ 572 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — EDUARDO VICTORIA-PENUELA Before Justice Paul H. Reinhardt Heard on 12 October 2010, 21 March, 1 April, 17 June & 9 August 2011 Reasons for Judgment released on 21 October 2011 Jennifer Gibson ......................................................................................................... for the Crown Stephen Simpson ................................................................................ for Eduardo Victoria-Penuela

REINHARDT J.: [ 1 ] At the outset of this proceeding, the Crown indicated they would be asking for a directed verdict on Count 2, and withdrew Count 5 and Count 12 on the information. The remaining counts, on which the Crown chose to call evidence, follow below. [ 2 ] Eduardo Victoria-Penuela (“Mr. Victoria”) is charged that in the City of Toronto, in the Toronto Region, he did the following, contrary to the Criminal Code :

(1) On or about 11 July 2009 without lawful excuse and with intent to harass M.V., make repeated phone calls, to wit: to M.V.;

(2) On or about 11 July 2009 without lawful excuse, loiter or prowl by night upon the property of C.M. situate at S[…] Avenue near a dwelling house situated thereon;

(3) On or about 12 July 2009, steal property to wit: house keys, the property of M.V. of a value not exceeding five thousand dollars;

(4) On or about 12 July 2009, commit forcible entry on the real property of M.V. at S[…] Avenue;

(5) On or about 11 July 2009 without lawful excuse, was in the dwelling house of M.V. situate at […] S[…] Avenue with intent to commit an indictable offence therein;

(6) On or about 12 July 2009 without lawful authority confine M.V.;

(7) On or about 12 July 2009 without lawful authority confine A.A.;

(8) On or about 12 July 2009 commit a sexual assault on M.V.;

(9) On or about 12 July 2009 by word of mouth knowingly utter a threat to M.V. to cause serious bodily harm to M.V.;

(10) On or about 12 July 2009 commit an assault on M.V.; and

(11) On or about 12 July 2009, by word of mouth knowingly utter a threat to M.V. to cause serious bodily harm to M.V.. [ 3 ] In this trial, the Crown elected to proceed summarily, and I heard from four witnesses: M.V., Constable Michael Devine, C.M. and Eduardo Victoria-Penuela. [ 4 ] In addition, placed in evidence were the following material exhibits:

(9) The CFS report of Linda Parker dated September 28, 2010; (6 & 8) The Fingerprint Identification Services report of Eileen Monks dated November 5, 2010 and Fingerprint Chart; and (15) the email dated 24 July 2009 from M.V.’ email address sent to Eduardo Victoria’s email address – with certified translation.

SUMMARY OF TESTIMONY M.V. [ 5 ] Ms. V. testified that she arrived in Canada from Mexico around April 2008 with her daughter A.A.. She met Mr. Victoria in July 2008 and began a romantic relationship with him shortly thereafter. According to her, the romantic relationship ended in January 2009. In July 2009, Ms. V. moved into the basement apartment at S[…] Avenue. She said that at no time while living at S[…] Avenue had she dated Mr. Victoria. [ 6 ] Ms. V. testified Mr. Victoria called her 40 times throughout the afternoon of 11 July 2009. According to her, Mr.

Victoria was hiding by the garbage containers when she returned home. He wanted to go inside the basement, but she said no. Ms. V. testified that it is at this point that he took her keys from her shorts pocket and opened the door of her home. Ms. V. testified that Mr. Victoria then said he was hungry because he had not eaten yet. Ms. V. testified that her daughter then offered and did prepare a sandwich for him. [ 7 ] Ms. V. testified that she the (strategically, as I understand her testimony) suggested they all go to the park in order to avoid her daughter hearing any conversation she might have with Mr.

Victoria. At the park, Ms. V. asked Mr. Victoria why he was acting so strangely and mentioned his numerous calls to her cell phone. Ms. V. testified that Mr. Victoria was apologetic and didn’t really understand what she was asking. Ms. V. testified that in the end, in exasperation and in order to terminate the conversation, she said: “we’re going to be fine, so everything is going to be fine.” [ 8 ] Ms. V. testified that they then returned to her home. Ms. V. testified that she then told Mr. Victoria to leave.

According to her, he said: Well, since things are fine with us right now, we’ll see each other on another day. [ 9 ] Ms. V. testified that Mr. Victoria then left, but called her shortly afterwards. She told him she was putting her daughter

to sleep, and hung up. [ 10 ] Ms. V. testified Mr. Victoria returned to the house ten minutes later and began pounding on the window and door. Hearing the pounding, Ms. V. testified she phoned the landlord who lived upstairs, C.M., and asked him to check the door. Ms. V. testified that C.M. came down, saw Mr. Victoria kicking the door, and asked him to stop kicking it. Ms. V. testified that Mr. Victoria then said he wanted his computer and camera back. Ms. V. testified she retrieved his computer and camera and placed it by the window outside.

She testified that she believed that this would be the end of the encounter with Mr. Victoria that night, and believed that he had left. [ 11 ] Ms. V. testified that she assumed that all was now well and therefore she retired to bed in her daughter’s room. [ 12 ] Ms. V. testified she woke up the following morning just before 8:00 a.m. She heard a noise in her apartment of a door being opened. She then saw Mr. Victoria leaving her bedroom and she was startled, shouting very loudly. She asked Mr. Victoria how he gained entry into the house, but he did not answer.

Instead, she testified he responded to her by stating: We are going to stay here for the whole week because I’m not going to allow you or your daughter to leave your home. [ 13 ] Ms. V. testified that to diffuse and to add a measure of comfort to the situation, she suggested they watch a movie. Ms. V. testified that at this time she also sent a text message Mr. Victoria’s friend Evelyn to ask her to come and get Mr. Victoria. [ 14 ] Ms. V. testified to this court that she had to use text messaging because on occasions when Mr.

Victoria was upset with her he would take the cell phone away from her and not allow her to speak on it. On at least one occasion he had actually broken her phone in anger. [ 15 ] Ms. V. testified that, after Mr. Victoria’s announcement that she and her daughter could not leave they were now very afraid. [ 16 ] Ms. V. testified that after the movie, again, to diffuse the situation, she made breakfast for everyone. They then watched another movie. [ 17 ] Ms. V. testified that before they had finished watching the second movie, the landlord’s young son knocked on the basement apartment door. Ms.

V. testified: I opened the door and he asked me whether my daughter could go outside to play and I said yes. [ 18 ] Ms. V. testified that she wanted to get out of the apartment, but when she made a move for the door, Mr. Victoria pushed her to the corner of a table. The table itself was positioned ten feet from the front door. Her daughter, A.A., then left with the boy. [ 19 ] Ms. V. testified that after A.A. left, Mr. Victoria and Ms. V. moved to her bedroom. Mr. Victoria told Ms.

V. that he would only leave if he committed suicide in her home or they had “relations -- a relationship.” She replied, “You can do whatever you please, but you’re not going to touch me.” [ 20 ] Ms. V. testified that in response to her statement, Mr. Victoria pushed her down onto her bed and he stood very close to the bed while masturbating over her, with the result that his semen went on her clothes. [ 21 ] When asked to elaborate, Ms. V. testified that he first tried to touch her breasts, but she said no and pushed him away. She testified that it was at this point that he started to masturbate.

She told him that she did not want to do anything. The semen hit her clothing. [ 22 ] Ms. V. testified that when Mr. Victoria finished masturbating, he told her he still wanted to have sex with her. Ms. V. testified she again told him “No!” [ 23 ] Ms.

V. testified that he then wrapped a computer cable around his neck, pretending to hang himself, and blocked the bedroom door. [ 24 ] The following questions and answers were then exchanged at trial: A: …So because he was standing at my bedroom door, I went to the other door, which is the door that gives [sic] to my landlord’s place, I pounded very strongly on the door and I shouted, “Please open the door.” Q: Okay. Did anybody respond? A: Yes, the landlord did. Q: Tell us what happened. A: Well, the landlord, what he did was go around and to go around to the entrance of my apartment and asked Eduardo to leave.

Actually told, not asked, he told Eduardo to leave. (Transcript 12 October 2010, pp. 42, 43) [ 25 ] Ms. V. then continued to describe the landlord pounding on the apartment front entrance door and shouting very loudly: “Open the door.” [ 26 ] Ms. V. testified that she ran to open it.

[ 27 ] Ms. V. testified that Mr. Victoria was behind her telling her not to say anything about what had just happened. [ 28 ] Ms. V. testified that when she opened the door, she told the landlord that Mr. Victoria had broken the apartment side window. [ 29 ] Ms. V. testified that C.M. then turned to Mr. Victoria told him to leave and went back upstairs. [ 30 ] Ms. V. testified that Mr. Victoria pretended to leave and she was able to close the front door with Mr. Victoria on the outside. [ 31 ] However, she testified that he then tried to enter the basement apartment through the window. [ 32 ] Ms.

V. testified that there was then a struggle at the window, and she decided to again try to diffuse things. She testified that at Mr. Victoria’s request she phoned his friend and Mr. Victoria and his friend spoke. [ 33 ] Ms. V. testified that Mr. Victoria then grabbed her by the hair in anger and continued to pull her hair until A.A. came home and asked Mr. Victoria to leave. [ 34 ] Ms. V. testified that as he was leaving Mr. Victoria told Ms. V.: that things were going to go very wrong for [her] and he threatened [her]. [ 35 ] Ms.

V. testified that he also said that he would return later that night to kill himself and have his body discovered by her in the morning. [ 36 ] After Mr. Victoria left, Ms. V. phoned her sister and told her that she wanted to call the police; her sister told her to wait for her. After Mr. Victoria left for the final time, he sent a text message to Ms. V.. She did not erase it because a Spanish speaking police officer told her to keep it. However, she was unable to recount what the message said at trial. [ 37 ] Ms. V. admitted on cross-examination that she told Mr.

Victoria that her sister J. doesn’t like him because he was not exactly pleasant. [ 38 ] Ms. V. admitted on cross-examination that although they broke up in January 2009, Ms. V. continued to see Mr. Victoria, and she did so without letting her sister know that she was doing so. [ 39 ] Ms. V. testified that she also worked with Mr. Victoria on weekends at a café. While working, her sister J. would babysit A.A.. [ 40 ] Ms. V. testified that on 11 July 2009, she dropped her daughter off at her sister’s house, but then learned that work was cancelled.

She testified that she wanted to go back and get her daughter, but Mr. Victoria would not let her. [ 41 ] Ms. V. testified that Mr. Victoria wanted to spend time with her. When questioned on that point, she testified that Mr. Victoria wanted her to obey him, and if she did not, an argument would follow. [ 42 ] Ms. V. testified that she later picked up her daughter from her sister’s house at the same time she would if she had went to work, in order to conceal from her sister the fact that she had been with Mr. Victoria. [ 43 ] Ms. V. testified that she went along with his “wants” to avoid an argument.

The time with Mr. Victoria on the morning of 11 July 2009 was spent by the Lakeshore. When leaving to pick up her daughter, Ms. V. originally testified that she said: we will see each other later. We will see each other soon. [ 44 ] In cross-examination, Ms. V. denied saying this but we know from the trial evidence that she did see Mr. Victoria later that night. [ 45 ] Ms. V. testified that after she moved into S[…] Avenue, Mr. Victoria had been in her apartment almost every day. She did not own a computer, but she had a blackberry cell phone that she used to send emails. Her email address was A.A.-[...].com.

She admitted to sending him emails, stating “I believe that I only sent him one, just once, not many, prior, prior to that, or previously.” She denied sending him any emails after he was arrested. [ 46 ] When questioned about calling Mr. Victoria after he was arrested, Ms. V. replied: On two occasions I had his number registered because of the message he had sent me and my daughter inadvertently call him. …Eduardo’s phone was registered in my cell phone as a result of the message that he sent me on July 12th after he left.

And then what happened I fell asleep and then my daughter inadvertently pressed his phone number and the same thing happened on the second occasion and those were the only two occasions in which my daughter inadvertently made calls to him. [ 47 ] When asked if her six year old daughter found Mr. Victoria’s name when using the phone, she said: “I didn’t have him as Mr. Victoria. I have him registered as ‘no’, n-o, so that she would know that she didn’t have to use the number.” (Transcript of 21 March 2011 at pp. 49 – 50) [ 48 ] Ms. V. testified that she told Mr.

Victoria to leave her alone when at the park with her daughter; however, she allowed him to accompany her back to her apartment before going home himself. Upon arriving at her place, he stayed for five minutes. She

told him “everything is fine, just go, we will talk later” and then he left. At no point there did she tell him not to call her; instead, she let him believe that everything was fine so that he would leave. Mr. Victoria called her after leaving and Ms. V. told him that he does not care about her. She then told him she was putting her daughter to sleep and ended the conversation. [ 49 ] Ms. V. testified that Mr. Victoria later returned to her apartment and began banging on the door and window. He wanted his computer, camera, and camera memory card returned. Ms.

V. returned his computer and camera through the window. She told Mr. Victoria that she did not have his memory card; however, this was admittedly false. She testified that she wanted the pictures. [ 50 ] Ms. V. described struggling with Mr. Victoria over the possession of her cell phone on 12 July 2009. First Mr. Victoria took her cell phone from her on the morning of 12 July 2009, and then she took it back from him. She indicated that it was for her protection, in case she needed to call for help. [ 51 ] Ms. V. also testified that Mr. Victoria would not allow her to leave her home for help.

The following questions and answers were given: [ 52 ] Q. You stated that Mr. Victoria did not allow you to do that or this, or several things on this afternoon? How did Mr. Victoria not allow you to exit the house? A. He would not allow me to leave my home. He would not allow me to do anything. Q. Did he physically hold you down? A. Well after he pushed me to the table I didn’t want things to escalate because I thought that then my daughter would be very frightened. Q. And after your daughter left? A. That is when the worst happened. Q. And that’s when you called 911? A. No, no.

I called my landlord. (Transcript of 21 March 2011 at pp. 69, 70) EDUARDO VICTORIA PENUELA [ 53 ] Mr. Victoria’s testimony essentially parallels the narrative provided by Ms. V., however, he concedes and admits facts that he submits fall short of proving beyond a reasonable doubt that what he did was “criminal”. [ 54 ] Mr. Victoria admits to having a romantic relationship with Ms. V. from July 2008. He admits to seeing her almost every day in July 2009 (before his arrest). He admits to working with Ms. V.. He admits to not having a great relationship with Ms. V.’ sister J.. He admits to calling Ms.

V. to meet up on the morning of 11 July 2009. He admits to spending several hours with her on Lakeshore during their work hours. He admits to her telling him that “we’ll be in touch later.” He admits to waiting for her near her residence in the afternoon. He admits to calling her phone continuously that afternoon; however, he testified that he only made three or four calls. [ 55 ] Mr. Victoria further testified that he accompanied Ms. V. and her daughter, A.A., to the park and then returned to the apartment and ate a sandwich prepared by A.A.. [ 56 ] Mr.

Victoria admits leaving the apartment after the sandwich but then returning in the evening of that day and kicking her door and her window when asking for the return of his computer and camera. He admits to being told by the landlord to stop kicking the door and window. He admits to receiving his computer and camera through the window of Ms. V.’s apartment. He admits to asking for his memory card back and being told by Ms. V. that she does not have it. [ 57 ] Mr. Victoria testified that he entered Ms.

V. home on the night of 11 July 2009 because the door was open, not seeing her, and spending the night in her bed. He admits to having breakfast with Ms. V. and her daughter on 12 July 2009. He admits to watching a movie with them as well. He admits that the landlord’s son knocked on the door and asked to play with A.A.. He admits that Ms. V. answered the door when the landlord’s son knocked. He admits that A.A. sought and received permission to play outside from her mother alone. He admits that the landlord came downstairs after A.A. went out to play.

He admits to being told by the landlord to leave and in fact leaving as a result. C.M. [ 58 ] C.M. testified he was the landlord at[…] S[…] Avenue in July 2009. He testified that he met Ms. V. when she came with Mr. Victoria, who helped both parties communicate between Spanish and English. [ 59 ] C.M. testified that he was told at the time that Ms. V. alone would be renting the apartment. Mr. Victoria was introduced to him as her boyfriend, but she said that he was not going to be staying there. C.M. testified that Ms. V. began renting the apartment as

of 30 June 2009. C.M. recalled seeing Mr. Victoria on most afternoons waiting at the back of the property for her to come home. [ 60 ] C.M. testified that he first became involved with the dispute between Ms. V. and Mr. Victoria on 11 July 2009 at around 10:30 or 11:00 p.m. He testified that Ms. V. had called him and said: There is somebody at the door knocking. Can you check that please? [ 61 ] C.M. testified that he investigated and saw Mr. Victoria at the outside door. Given his past dealings with Mr. Victoria, the landlord let him inside to access Ms. V.’ apartment door.

As C.M. began to go back to his living space, he heard Mr. Victoria knock on the complainant’s door several times while saying: M.V., please open the door. This is Eduardo. [ 62 ] C.M. testified that in his presence, Ms. V. did not open the door, and Mr. Victoria kicked the door twice. [ 63 ] C.M. testified that he told Mr. Victoria that he had to leave and that if he continued to kick the door, the police would be called. According to C.M., Mr. Victoria then apologized and said he was leaving. C.M. testified that he locked the outside door when Mr.

Victoria left. [ 64 ] C.M. testified to leave the property a person must pass by a basement window. C.M. testified that after Mr. Victoria left the house he heard him knocking on the window. C.M. testified that he once again told him to leave. Mr. Victoria told the landlord: I have my personal things, my computer, other things with M.V.. I will take it and I will go. [ 65 ] C.M. testified that Ms. V. then opened the window and gave the computer to Mr. Victoria. [ 66 ] C.M. testified he told Mr. Victoria: I think you can leave now… [ 67 ] C.M. testified that he then went back upstairs for the night because Mr.

Victoria assured him that he would leave. [ 68 ] C.M. testified that the next morning he decided to look at the door to make sure the door to Ms. V.’ apartment was not broken after Mr. Victoria kicked it. He testified that he knocked on Ms. V.’ door the around 10:00 or 11:00 in the morning to check the door and see if she was alright. [ 69 ] C.M. testified that Ms. V. opened the door and said: No, I am not alright. He came through the window. [ 70 ] C.M. testified that after Ms. V. said that Mr. Victoria came through the window, Mr. Victoria said: I didn’t break the window and I didn’t come through.

She opened the door. [ 71 ] C.M. testified that he did not see any reason to call the police because he did not see anything wrong from his point of view at that time. [ 72 ] There was some uncertainty from C.M.’s evidence regarding what Mr. Victoria said in response to the allegation that he came through the window. The confusion continues when the Crown asked if he could confirm what had been said that morning by the respective parties. C.M. was unable to confirm with confidence the precise wording and instead said: I am not sure. But all he said that she opened like that.

I don’t know what, he used the door or -- all he tried to mean that she opened and M.V. said “No. He opened the window and came like that,” different. (Transcript, 1 April 2011, p. 89) THE CFS REPORT OF LINDA PARKER [ 73 ] The CFS Report, filed as exhibit 9 at trial, is a four page report that concludes that female DNA and male DNA from semen were found on M.V.’ jeans. According to the report, there is a 1 in 91 billion chance that the DNA belongs to someone other than Mr. Victoria. In other words, the semen on Ms. V.’ pants came from Mr. Victoria.

The report is dated September 28, 2010, with the evidence processing date recorded as 21 July 2010. F.I.S. REPORT OF EILEEN MONKS [ 74 ] The Fingerprint Identification Services Report, filed as exhibit 6 at trial, concludes that three fingerprint impressions found on the exterior basement window point of entry came from the hands of Mr. Victoria. In other words, the report establishes that at some point in time, Mr. Victoria touched the exterior face of the basement window.

EMAIL DATED JULY 24, 2009 [ 75 ] The email message, filed as exhibit 15 at trial, is a three page document, with the first page containing a Spanish message,

the second page containing an English translation, and the third page containing the certification of translation. Mr. Victoria testified that he was arrested and then released on bail on 24 July. He testified that upon his release he checked his email and saw that he had received a message from the complainant. The email was sent from the same email address that Ms. V. admitted was her email account. Mr. Victoria testified that this meant the email had to have been sent was sent to him by Ms. V..

The e-mail text includes: Pardon me if I am bothering you more so that I have bothered you in the past, but you know that I am here alone and I feel awful about everything that happened between us. I hope that one day you will forgive me for all the harm that I have caused you and let there be no rancour. [ 76 ] Mr. Victoria testified he is “pretty sure” that Ms. V. was seeking forgiveness from him for the fact that he had been arrested and charged with the offences before the court.

THE POSITION OF THE PARTIES THE CROWN [ 77 ] It is the Crown’s submission in this proceeding that the testimony and expert evidence adduced by the prosecution is credible and reliable, and this Court can rely on it to convict Mr. Victoria of all of the counts in the Information that he is facing. [ 78 ] The Crown’s principal witness was the victim, Ms. M.V.. The Crown submits that Ms. V. testified in a simple, straightforward manner. The Crown submits that she did not exaggerate, nor was she contradicted anywhere in her evidence, except to the extent that Mr.

Victoria claimed that his actions were not “criminal” in nature. The Crown submits that her evidence was logical, internally consistent, and should be accepted on its own merits as being credible and reliable. [ 79 ] The Crown also relies on the testimony of an “independent” witness, C.M., the landlord of […] S[…]. The Crown submits that C.M.’s version of events corroborates Ms. V.’s testimony. [ 80 ] The Crown also submits that Ms. V.’s testimony is corroborated by physical evidence which corroborates what she testified happened on 11 and 12 July 2009. THE DEFENCE SUBMISSIONS ON PARTICULAR COUNTS

(1) Criminal Harassment on 11 July 2009 [ 81 ] The defence submission is that Mr. Victoria denies calling Ms. V. 40 times; however, if I find that he did make these calls, the defence submits that the Crown has called no evidence to show that those calls caused Ms. V. to feel fear for herself or a person known to her. The defence suggests that the complainant, Ms. V.’s testimony as a whole, especially pages 23 and 24 of the transcript of evidence on 12 October 2010 do not establish that the repeated communications caused fear.

(3) Theft Under $5,000 of house keys on 12 July 2009 [ 82 ] The defence submission is that this allegation is based upon the assertion that Mr. Victoria took Ms. V.’ house keys without her permission. The defence submits that Mr. Victoria denied this allegation; instead, he testified that Ms. V. went in the home first because she had the keys. The defence suggests that on the evidence, there is no basis for a finding of guilt beyond a reasonable doubt.

(4) Forcible Entry on 12 July 2009 [ 83 ] The Crown alleges that Mr. Victoria gained entry by forcing his way through the window. The defence submits that in order to convict Mr. Victoria, they must show, pursuant to section 72(1) of the Criminal Code , that Mr. Victoria entered Ms. V.’ apartment in a manner that was likely to breach the peace or create a reasonable apprehension of a breach of peace. Mr. Victoria’s evidence is that Ms. V. opened the front door for him. The landlord’s evidence was, at least in part, that Mr. Victoria insisted that he entered the home through the front door that was unlocked by Ms.

V.. The defence submits that there is no evidence that the basement window, when closed, could be breached from the outside. [ 84 ] The defence further submits that the F.I.S. report shows that Mr. Victoria’s fingerprints were on the outside of the window and that this is entirely consistent with non-criminal acts as well, since he was at the apartment almost every day. The defence submits that Ms. V. testified that Mr. Victoria helped her renovate her apartment. Finally, the defence submits that Mr. Victoria and Ms. V. both testified that his computer and camera were passed through the basement window.

Thus, it is submitted, there are several reasons why Mr. Victoria’s fingerprints may have found their way on the exterior window. Ms. V.’ evidence is confusing as to its chronology. She is actually guessing that he entered the apartment through the window, and given the credibility submissions made above, it is submitted that the evidence of Ms. V. is simply not credible enough and not reliable enough to ground a finding of guilt beyond a reasonable doubt. Thus Mr. Victoria should be found not guilty on the charge of forcible entry.

(5). In a Dwelling House Without Lawful Excuse to Commit an Indictable Offence [ 85 ] The defence submits that ultimately, the evidence of Ms. V. is simply not credible enough and not reliable enough on what happened over the two days to ground a finding of guilt beyond a reasonable doubt. Thus Mr. Victoria should be found not guilty on the charge of being in a dwelling house without lawful excuse.

(6) Unlawful Confinement of M.V. on 12 July 2009 [ 86 ] The Crown alleges that Mr. Victoria confined Ms. V. to her apartment on 12 July 2009. The defence submits that the only evidence of this is her testimony that Mr. Victoria did not let her move from one point to another within her apartment. The Crown relied on the testimony of Ms. V. that Mr. Victoria told her that she could not leave for a week. Furthermore, when Ms. V. tried to leave, Mr. Victoria pushed her against a table. Mr. Victoria, on the other hand, denies this allegation. His evidence is that he never told Ms. V. that she could not leave.

He denied ever pushing her against a table. The defence submits that Ms. V.’ evidence is suspect. Firstly, the defence submits that Ms. V. testified that Mr. Victoria told her that both her daughter and she could not leave the home for a week. Despite this, the defence point out that when the neighbour’s son asked to play with her daughter, Ms. V. said yes and gave her permission to go outside, and the child was permitted to leave. Again, the defence submits that the evidence of Ms. V. is simply not credible enough and not reliable enough to ground a finding of guilt beyond a reasonable doubt.

(7) Unlawful Confinement of A.A. on 12 July 2009 [ 87 ] The defence submits that the Crown evidence clearly shows that A.A. was not confined by Mr. Victoria or at least, raises a reasonable doubt in that regard. Ms. V.’ own evidence showed that she was the decision-maker as to where and when A.A. went: A.…the little boy of the landlord knocked at the door several times. Later, I opened the door and he asked me whether my daughter could go outside to play and I said yes… Q. Okay. So, did your daughter go out then? A. Yes. […] Q. And how was it that she was able to leave the apartment? A.

Because of the children that came to knock at the door that’s how she went out. Q. Did you have any discussion with Eduardo about her going out? A. No, I simply said, “Yes, she can go out.” I just wanted my daughter not to be inside the home any longer. I wanted her to go out and distract herself, entertain herself. (Transcript, page 33, 12 October 2010 and also see her testimony in cross-examination, page 67, 21 March 2011)

(8) Sexual Assault on M.V. on 12 July 2009 [ 88 ] The Crown alleges that Mr. Victoria sexually assaulted Ms. V. by masturbating in front of her in a manner that resulted in his semen landing on the jeans she was wearing. She moved in 30 June 2009 and Mr. Victoria the alleged incident occurred on 11 & 12 July 2009. Both Ms. V. and Mr Victoria testified that they had been in a boyfriend-girlfriend relationship proximate to these events. Within the span of 12 to 13 days, C.M. testified that he saw Mr. Victoria at the apartment almost every day.

His observations, it is submitted, are entirely consistent with a boyfriend-girlfriend relationship. [ 89 ] Mr. Victoria also testified that their relationship was sexual. However, he denied masturbating in front of Ms. V. on 12 July 2009. The Crown introduced a CFS report that concluded that Mr. Victoria’s semen was on Ms. V.’ jeans. The defence submits that the CFS report did not provide a date as to when the semen was deposited. The defence submits that in order to succeed, the Crown must show that sexual contact occurred between the accused and the complainant at the requisite time, that Mr.

Victoria intended to make that contact or was reckless with respect to his behaviour in making such contact, that the contact was unwanted, and that Mr. Victoria knew or should have known that the contact was unwanted. [ 90 ] The defence submits that the CFS report is consistent with prior sexual contact as well as contact on 12 July 2009. In other words, the defence submits that the report assists in determining whether sexual contact ever occurred between the accused and Ms.

V., but it does little to narrow the date of when such contact occurred (other than that the contact occurred prior to the report being made). [ 91 ] The defence submits that reliance on Ms. V.’ testimony alone (or in concert with evidence not capable of proving criminality independently) is problematic. The defence again submits that the testimony of Ms. V. is simply not credible enough and not reliable enough to ground a finding of guilt beyond a reasonable doubt

(9 & 11) Utter Threat to M.V. to cause serious bodily harm toM.V. on 12 July 2009 (Two Counts) [92] The Crown alleges that Mr. Victoria threatened Ms. V. by telling her that things would go very wrong for her. Accordingto Ms. V., she understood that to be a threat against her. The defence submits that, in order to succeed, the Crown must again rely on thetestimony of Ms. V. notwithstanding the internal and external inconsistencies of her evidence, and notwithstanding the explicit denial byMr. Victoria of threatening Ms. V.. The defence submits that the testimony of Ms. V. is simply not credible enough and not reliableenough to ground a finding of guilt beyond a reasonable doubt.

(10) Assault M.V. on 12 July 2009 [93] The Crown alleges that Mr. Victoria assaulted Ms. V. on 12 July 2009. Mr. Victoria does not admit to assaulting Ms. V.at any time. The defence submits that no independent evidence was adduced to suggest that an assault occurred. Again, the defencesubmits that in order for the Crown to succeed, it must rely on the testimony of Ms. V. alone. The defence submits that while there is aphotograph of hair on the kitchen floor (exhibit 11B at trial) there are myriad reasons why a person’s hair may find itself on the floor.

Most of those reasons, it is submitted, would not be an indictment against Mr. Victoria. The defence submits that once again, thetestimony of Ms. V. is simply not credible enough and not reliable enough to ground a finding of guilt beyond a reasonable doubt. ThusMr. Victoria should be found not guilty on the charge of assault. The Legal Framework [94] In the oft-quoted description of the duty of the trier-of-fact in assessing the testimony of an accused who chooses totestify on their own behalf and deny the Crown’s allegations, R. v. W. (D.), (SCC), [1991] S.C.J.

No. 26, Justice PeterCory stated, starting at paragraph 26: 26 It is clear that the trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case that, in order to render averdict, they must decide whether they believe the defence evidence or the Crown's evidence.

Putting this either/or proposition to thejury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in thecontext of the evidence as a whole, may still have a reasonable doubt as to his guilt. 27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357. 28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.

Atrial judge might well instruct the jury 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 evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should bemade to avoid mistakes in charging the jury on this basic principle. Analysis [95] On 11 July 2009 the allegations include:

(1) Without lawful excuse and with intent to harass M.V., makerepeated phone calls to M.V.;

(2) Without lawful excuse, loiter or prowl by night upon theproperty of C.M. situate at S[…] Avenue near a dwelling housesituate thereon;

(3) Without lawful excuse was in the dwelling house of M.V. situate at S[…] Avenue with intent to commit and indictable offence therein; [ 96 ] On 12 July 2009 the allegations include:

(1) Steal property to wit: house keys, the property of M.V. of a value not exceeding five thousand dollars;

(2) Commit forcible entry on the real property of M.V. at S[…] Avenue;

(3) Without lawful authority confine M.V.;

(4) Without lawful authority confine A.A.;

(5) Commit a sexual Assault on M.V.;

(6) By word of mouth knowingly utter a threat to M.V. to cause serious bodily harm to M.V.;

(7) Commit an assault on M.V.;

(8) By word of mouth knowingly utter a threat to M.V. to cause serious bodily harm to M.V.. [ 97 ] I have concluded that the Crown has succeeded in proving the third, fifth, sixth and seventh allegations on 12 July 2009, Counts7, 9, 10 and 11 on the Information before the court. [ 98 ] Let me explain why. [ 99 ] Ms. V. testified that she arrived in Canada from Mexico around April 2008 with her daughter A.A.. She met Mr. Victoria in July 2008 and began a romantic relationship with him shortly thereafter. According to her, the romantic relationship ended in January 2009. In July 2009, Ms.

V. moved into the basement apartment at S[…] Avenue. She said that at no time while living at S[…] Avenue had she “dated” Mr. Victoria. [ 100 ] In contrast, Mr. Victoria testified that the romantic relationship did not end in January and that he was still “seeing: Ms. V. up until the time of his arrest on these charges. [ 101 ] C.M. testified that when Ms. V. rented the apartment, Mr. Victoria was introduced to him as Ms. V.’ boyfriend. [ 102 ] Mr. Victoria admits to “seeing” Ms. V. almost every day in July of 2009, prior to his arrest.

He admits to waiting for her to come home to her residence in the afternoons, during July, and to calling her “continuously” on the afternoon of 11 July 2009. [ 103 ] Mr. Victoria testified, however, that he only made three or four phone calls on the afternoon of 11 July 2009. [ 104 ] In contrast, Ms. V. testified that there were forty calls throughout the afternoon, and that he was hiding by the garbage containers when she returned home. When he came to the basement apartment door after she returned home, she suggested they go to the park rather than letting him inside. Ms. V. testimony was that Mr.

Victoria then took her house keys from her pocket and opened the apartment door, and asked for some food. [ 105 ] Mr. Victoria testified that she let him in, and that he did not take the keys from her and that her daughter A.A. made food for him. [ 106 ] Ms. V. testified that they then went to the park so that A.A. could not hear their discussions. She testified that he promised to change, and not behave as he had in the past, but she insisted that the relationship was over, and that all would be “fine” so long as he

understood that. [107] Ms. V. testified that after less than an hour they returned to the apartment, and she refused to let him in. She testified thathe told her that since things were “fine” now, he would see her another day. [108] Ms. V. testified that later that day, in the evening, as she was putting her daughter to bed, Mr. Victoria phoned her, but shetold him she was taking care of her daughter, putting her to bed, and hung up on him. [109] Ms. V. testified that within ten minutes, Mr. Victoria had returned to the apartment, and proceeded to pound on thebasement side window and the apartment door. [110] Ms.

V. testified that she called the landlord, C.M., by phone to come to her assistance, and the landlord and his wife camedownstairs. [111] Ms. V. testified that Mr. Victoria explained to the landlord and to her that he wanted her to return his computer and camera,and that she did so, through the basement window. Ms. V. also conceded ain cross-examination that she lied to Mr. Victoria aboutanother item he was looking for, his “memory card” because she wanted the pictures on the card. [112] The defence submits that there is no direct evidence that Mr.

Victoria got into the apartment through the window. [113] The defence submits, essentially, that all these charges will all rise and fall with my assessment of the Ms. V.' credibility. Findings [114] After weighing all the testimony in this proceeding, I am not satisfied beyond doubt that Mr. Victoria criminally harassed Ms. V. with his phone calls on the 11th. [115] In well-prepared written submissions, in support of the submission that the Crown has not made out the case for criminalharassment, the defence cites the Ontario Court of Appeal decision, R. v. Kosikar, (ON CA), [1999] O.J.

No. 3569(C.A.) at para. 19, in which Justice Stephen Goudge states: I also agree with Proulx J.A.'s adoption, from R. v. Sillipp (1997), 1997 ABCA 346 , 11 C.R. (5th) 71 (Alta. C.A.), of thefollowing description of the five essential elements of the offence: 1) It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (

d) of the Criminal Code. 2) It must be established that the complainant was harassed; 3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless orwilfully blind as to whether the complainant was harassed; 4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and 5) It must be established that the complainant's fear was, in all of the circumstances, reasonable. [116] I accept the defence submissions on this count. [117] I find that although Mr. Victoria repeatedly called Ms.

V. that day it was not criminal harassment. I find that, in the contextof the evidence, Mr. Victoria had not yet realized the relationship was truly at an end. I further specifically do not find that find that Mr.Victoria knew that Ms. V. was harassed or was reckless or wilfully blind as to whether she was harassed. Although it is clear from thevantage point of this case that Ms.

V. was making every effort to terminate the relationship and that she was likely harassed by hisconstant attentions, I am not yet prepare to find that she was harassed to a criminal standard of proof. [118] I also reject the Crown submission that Ms. V. was fearful for her safety based upon the telephone calls that were madethat day. [119] I am also not satisfied beyond a reasonable doubt that Ms. V. had an objective and reasonable fear for her safety, at thetime of the phone calls. [120] However, the situation takes a fundamental shift when Mr.

Victoria returns to the apartment in the evening of the 11th, and in the events on the morning of the 12th. [121] I am satisfied beyond a reasonable doubt that Mr. Victoria did, without lawful authority, confine M.V. on the 12th, both byhis words and his actions in keeping her in the apartment at the time her daughter was permitted to leave. (Count 7) [122] I am also satisfied beyond a reasonable doubt that Mr. Victoria committed a sexual assault, on the 12th, by pushing Ms. V.down on her bed, attempting to touch her breasts and standing very close to her and masturbating. (Count 9) [123] Mr.

Victoria denied that he masturbated while standing over Ms. V. but his credibility is undermined by the CFS Reportthat Mr. Victoria’s semen was on her jeans. Although, as the defence submits, the report cannot say when the semen was deposited, thereport does tend to lend credence to her testimony. I find that Ms. V. was attempting to end their relationship, and I find that it is probablethat Mr. Victoria simply “lost it” on these two days, as the reality began to set in for him that the relationship was at an end.

[124] I am also satisfied beyond a reasonable doubt that he assaulted her by pulling at her hair and also threatened her beforefinally leaving her apartment that day on the 12th. (Count 11) [125] The defence asks me to find “internal and external inconsistencies” in Ms. V. testimony sufficient to raise doubt in theCrown’s case along with Mr. Victoria’s denials. Mr. Victoria admits that he was asked to leave and did leave that day in response toentreaties from both Ms. V. and the landlord, C.M.. However, he denies the criminal conduct against Ms.

V. which, according to her,caused her to ask him to leave. [126] I have concluded, after working through the three-step process of reasoning required by R. v. W. (D.), (SCC), [1991] S.C.J. No. 26, supra, that Mr. Victoria’s denials do not raise a doubt, and that the testimony of Ms. V. is credible andreliable on the fact that she was confined, that her hair was pulled and that she was threatened on 12 July 2009. [127] Ms. V. was not entirely trustworthy as a witness, as submitted by the defence, with regard to the post charge contact thattook place between them.

She essentially denied either phone or e-mail contact, and Exhibit 15 would seem to discredit her denials.However, in my view, that does not detract from the essential credibility of her testimony on the counts I have enumerated in which I findthat the Crown has proven its case to the criminal test of “beyond a reasonable doubt”. [128] In my view, as briefly stated above, at paragraph 120, I have found that Mr. Victoria’s conduct because criminal after he came back in the evening of the 11th, and after he woke up prior to 8:00 a.m. on the 12th.

His conduct suggests to me that by his words and his actions on the morning of the 12th, he had realized that the relationship, from Ms. V.’ perspective, was untenable, deeplytroublesome, and she would not have him back.

He then embarked on threatening and abusive behaviour to a criminal standard, knowingthat what he was doing was criminal by confining her, sexually and physically assaulting her and threatening her. [129] With regard to the other counts before the court, I have also found the defence arguments persuasive, as I did on the countof criminal harassment. [130] With regard to the allegation of the theft of her keys on the 11th, Count 3 on the Information, I am left with doubt by Mr.Victoria’s testimony, which I accept on that specific point. [131] On the offence of “forcible entry”, Count 4, I accept the defence argument.

I am not satisfied that the Crown has shownthat Mr. Victoria entered Ms. V.’ apartment in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace as required by section 72(1) of the Criminal Code. [132] The testimony of Mr. Victoria is that he was let into the apartment by Ms. V., and her evidence is not clear on this. Sheindicates that he was trying to enter the apartment through the side window, but then testified that she tried to calm him down and speakto him. That would be consistent with letting him in through the apartment door, as Mr. Victoria testified.

Taken as a whole Ms. V.’testimony is internally unclear and her testimony does not in my view satisfy the court either that he indeed did enter through thewindow, or that his intention at that time was to “breach the peace.” I agree with the defence submissions that the F.I.S. Reports,Exhibits 6 & 8, only show that his fingerprints were on the outside of the window, and are consistent with his having received hisproperty through the window.

I therefore am left with doubt on Count 4. [133] With respect to Count 6, being in the dwelling house without lawful excuse, on 11 July 2009, I do not find that the Crownhas shown beyond a reasonable doubt that Ms. V. did not let Mr. Victoria into the premises, or that his initial purpose for being there wasto commit an indictable offence. [134] With respect to the counts of confinement of A.A., Count 8 on the Information, the defence has persuaded me that I shouldhave reasonable doubt respecting the Crown’s case. A.A. did leave the apartment to play outside with the landlord’s son.

Although Mr.Victoria denies the allegations and testified that he never told Ms. V. that she and her daughter could not leave and never pushed Ms. V.,or stopped her from leaving, I accept the evidence of Ms. V., at least as it relates to her own circumstance. [135] However, in my view, the Crown evidence cannot support a conviction on the count relating to A.A., Count 8. [136] In the result I will make findings of guilt with respect to Counts 7, 9, 10 & 11, and dismiss the remaining counts on theInformation, Counts 1, 3, 4, 6 & 8. Released: 21 October 2011 Signed: “Justice Paul H. Reinhardt”