



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue. These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     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 victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13,
    s. 18.

486.6(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.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Priestap, 2021 ONCA 920

DATE: 20211221

DOCKET: C68369

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Gary Priestap

Appellant

Bruce Engel, for the appellant

Michael Fawcett, for the respondent

Heard: December 13, 2021

On appeal from the convictions entered
    on August 27, 2013, and the sentence imposed on October 16, 2015, by Justice Thomas
    J. Carey of the Superior Court of Justice.

REASONS FOR DECISION

Overview

[1]

The appellant, Bradley Priestap, appeals his convictions on
    multiple counts of voyeurism, break and enter to commit voyeurism, possession
    of instruments for break and enter, and prowling on property at night. The
    events that gave rise to the charges occurred during several nights in August
    and September 2012 in a student housing neighbourhood near the campus of
    Western University. At sentencing the appellant was declared
a
    long-term offender.

[2]

The appellant was sentenced to serve nine years in
    custody followed by a ten-
year supervision order. Although his notice of
    appeal seeks leave to appeal from his sentence, before us the appellant
    abandoned his sentence appeal.

[3]

The appellant advances three main grounds of appeal
in
    respect of his convictions: (i) the trial judge failed to provide adequate
    reasons that were supported by the evidence; (ii) the trial judge erred by summarily
    dismissing any notion that an alternate suspect could have been responsible
    for the crime
[
s
]
; and (iii)
    ineffective assistance of counsel.

[4]

At the conclusion of the appellants submissions, we advised that it was
    not necessary to hear from the respondent and dismissed the appeal, with
    reasons to follow. These are those reasons.

Adequacy of reasons

[5]

The appellants challenge to the adequacy of the trial judges reasons
    combines (a) disagreement with some specific findings of fact, such as the
    similarity of the type of duct tape on the appellants camera with that found
    in his car
 together with a bag containing a black toque,
    flashlight, and screw driver  with (b) a complaint that the trial judge did
    not provide detailed reasons for why he rejected the appellants explanation
    about his presence in the student housing as it bordered on laughable.


[6]

As stated in
R. v. Vuradin
,
2013 SCC 38,

[2013]
2
S.C.R. 639, at para. 15, The core question in
    determining whether the trial judges reasons are sufficient is the following:
    Do the reasons, read in context, show why the judge decided as he did on the
    counts relating to the complainant? When reasons are alleged to be
    insufficient, an appellate court must perform a functional and contextual
    reading of a trial judges reasons to assess whether the reasons, read in
    context and as a whole, in light of the live issues at trial, explain what the
    trial judge decided and why they decided that way in a manner that permits
    effective appellate review:
R. v. G.F.
,
    2021 SCC 20,
71 C.R. (7th) 1,
at para. 69.

[7]

In the present case, the trial judges reasons explain what he decided
    and why. The reasons reveal that the trial judge relied on an accumulation of
    evidence to convict the appellant: the pattern of travel of the appellants
    vehicle recorded by a warrant-approved tracking device attached to the car; the
    observations of the officers who conducted surveillance of the appellant in the
    student housing area on the night of September 28, 2012; the arrest of the
    appellant that evening in that area; the photographs of partially clad female
    students found in the appellants camera; the duct tape that covered the flash
    on the appellants camera; the contents of the black bag seized from the
    appellants car pursuant to a warrant; and the description given by a female
    student of the person who had entered into her room when she was asleep.

[8]

As well, the trial judge spent considerable time in his reasons
    describing and assessing the appellants explanation for moving amongst various
    houses in the student area at night: namely, that he was looking for a friend
    named Rob or Rocco who previously had used his camera and must have been the
    person who took the photographs of the female students. In his reasons, the
    trial explained why he found many parts of Mr. Priestaps story to be
    ridiculous and an affront to common sense and intelligence and, therefore,
    rejected it.

[9]

It was for the trial judge to assess the appellants credibility and we
    see nothing unreasonable in the conclusion he reached. Nor are we persuaded
    that the trial judges factual findings were tainted by palpable and overriding
    error.

[10]

Accordingly,
    we reject this ground of appeal.

Alternate suspect

[11]

The
    appellant submits that the trial judge failed to provide trial counsel with an
    opportunity to present the evidence of a third
-party
,
    or alternate, suspect.

[12]

The
    record does not support this ground of appeal.

[13]

Evidence of the possible involvement of a third party in the
    commission of an offence is admissible if there is a significant connection
    between the third party and the crime:
R. v. Grandinetti
,
2005 SCC 5,
[2005] 1 S.C.R. 27, at paras. 46
-47.

[14]

As the respondent Crown accurately notes, the trial judge did allow
    the appellant to call evidence with respect to two proposed third-party
    suspects but did not permit such evidence in respect of a third individual. The
    conduct of the third individual was described in an April 27, 2013 newspaper
    article that trial counsel put to one of the investigating officers, P.C.
    Lipskey, during cross-examination
. The article described the activity of
    a young man who drove a car on to the Western University campus, would stop and
    ask for directions from a female student, invite the student into his car to
    show him how to reach his destination, and then proposition the student for
    sexual favours.

[15]

Officer
    Lipskey testified he was not familiar with the investigation into the activities
    described in the article, which was published about half a year after the
    appellants arrest. When trial counsel continued her questioning, the trial
    judge interjected and the following exchange took place:

THE COURT: Ill let you ask him about the
    other

ones, but this is  are
    you suggesting anything that involves anything possibly sexual and University
    students is relevant, any investigation is relevant to this investigation?
    Youre talking about somebody propositioning people in cars. This is an investigation
    into break and enters and also, trespass and prowling by night and voyeurism
    while people are sleeping. Am I supposed to think that, first of all, the fact
    that offences are happening while an accused person is in custody, is not
    remarkable? Theres going to be all sorts of things happening, maybe this kind
    of thing happening, but secondly this second set of circumstances doesnt seem
    to have any relation to whatsoever the charge that were being, that were
    dealing with here.

MS. CONRON: Well Your Honour, it would be my
    submission that it is tangently

related
    because it is of a sexual nature. It is on the Western University region. Its
    while Mr. Priestap is in custody. I expect hell provide evidence and this may
    tie into that.

THE COURT: Well the Officer has said he
    doesnt know any  he doesnt agree with you that its related. I, I dont
    think youre, I think what youre, frankly youre wasting our time with it.

MS. CONRON: Well Ill move on.

THE COURT: Okay.

[16]

Given
    the lack of connection between the conduct of the driver of a car on the
    Western University campus and the night-time prowling and break and enter
    activity for which the appellant was charged, we see no error in the trial
    judge suggesting to counsel that it would be a waste of time to pursue further
    questioning about the investigation into the car driver.

Ineffective assistance of counsel

[17]

Although
    the appellant filed a lengthy affidavit alleging numerous deficiencies in the
    legal assistance provided to him by trial counsel, in his factum he relies on
    two allegations of ineffective assistance: (i) his counsel did not properly
    prepare him for trial, specifically by failing to ask the appellant that he was
    aware of the police presence in the student area at all times and was in the
    area at other times; and (ii) his counsel failed to bring a
Charter
application to exclude any and all police
    observations of the appellant.

[18]

We
    accept the Crowns submission that the appellant has failed to demonstrate that
    trial counsels alleged competence prejudiced the appellants right to a fair
    trial:
R. v. Garofoli
(1988), 41 C.C.C. (3d)
    97 (Ont. C.A.), at
p
. 15
2, revd on
    other grounds, [1990] 2 S.C.R. 1421
.

[19]

In
    respect of counsels alleged failure to ask the two questions, the appellant
    has not demonstrated how any answers he might have given would have impacted
    the result. We agree with the Crown that the trial judges strong finding against
    the appellants credibility casts a pall over his attempt before us, in effect,
    to reconstruct an innocent explanation for his presence in the student
    residence area on the nights in question.

[20]

In
    respect of a
Charter
application that was
    never brought, we accept the Crowns submission that the appellant has not
    presented a proper record on this appeal to enable this court to evaluate his
Charter
claims nor has he demonstrated that the result
    would have been different had such an application been litigated.

[21]

We
    see no merit in this ground of appeal.


Disposition

[22]

For the reasons set out above, the appeal from convictions is
    dismissed.

E.E. Gillese
    J.A.

David Brown
    J.A.

S. Coroza J.A.


