



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Boast, 2019 ONCA 19

DATE: 20190114

DOCKET: C65460

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cody Boast

Appellant

Ian Carter, for the appellant

E. Nicole Rivers, for the respondent

Heard: January 10, 2019

On appeal from the convictions entered by Justice
    Catherine D. Aitken of the Superior Court of Justice on December 21, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of repeatedly communicating by way of
    telecommunication with intent to harass contrary to s. 372(4) of the
Criminal
    Code
, breach of recognizance, and breach of probation. He received a
    sentence of 20 months imprisonment.

[2]

The appellant appeals the convictions. His principal submission is that
    the conviction for the communicating offence is unreasonable. Hence the appeal
    should be allowed, the conviction set aside, and an acquittal entered.

[3]

On Saturday, January 30, 2016, four Carleton University students,
    including the complainant, L.M., and her friend, S.C., went to a bar in
    Gatineau called Mardi Gras. While at Mardi Gras, L.M. spoke to S.C. about her
    interest in another student, Brandon, who was also at Mardi Gras. According to
    S.C., a man whom she identified at trial as the appellant overheard the
    conversation and offered to assist in hooking L.M. up with Brandon. The man
    introduced himself to S.C. as Cody. S.C. and Cody chatted briefly.

[4]

At some point, Cody chatted with L.M. During this conversation, Cody
    and L.M. discussed how they would work out at the Carleton University gym and
    how L.M. liked to do squats. They agreed to work out together at the gym at
    some point. They also exchanged cell phone numbers.

[5]

L.M. spent most of the time at Mardi Gras dancing with Brandon, while
    Cody danced with her friend Lindsay. After about an hour at Mardi Gras, L.M.,
    Brandon, Cody, Lindsay and S.C. went to another bar, Le Pub. S.C. stayed at
    Le Pub until closing time. At approximately midnight, L.M., Brandon, Cody and
    Lindsay decided to go to the Gatineau casino. Prior to leaving, Cody made a
    comment to L.M. that she could either go home with Brandon or with him.

[6]

Cody drove everyone to the casino. The couples (Brandon and L.M. and
    Cody and Lindsay) separated at the casino but met up less than an hour later
    to go home. Cody drove everyone back to his place. Brandon and L.M. stayed
    there for approximately ten minutes then went home.

[7]

At some point the next day, Sunday, January 31, 2016, L.M. began
    receiving text messages from the cell phone number she had assigned to Cody
    in her cell phone. Cody referred to L.M. as squat girl, discussed working
    out with her in the future, mentioned that he was hungover, and asked her if
    she had fun with Brandon the other night. Cody also made suggestive remarks
    and attempted to arrange a meeting with L.M. Eventually the conversation took a
    negative turn and Cody started sending aggressive, insulting, and belittling
    messages to L.M.

[8]

Upset, L.M. showed the messages to S.C. S.C. then began exchanging
    messages with Cody. The messages sent by Cody continued to be aggressive,
    insulting, and belittling. Later, L.M. and S.C. received insulting and
    belittling messages from an email address they did not recognize.

[9]

On Tuesday, February 2, 2016, L.M. and S.C. met with Carleton University
    security. They then contacted the police to report the messages. The appellant
    was arrested and charged with repeatedly communicating with L.M. by means of
    telecommunication, with intent to harass L.M., contrary to s. 372(4) of the
Criminal
    Code
. He was also charged with breaching two probation orders and one
    recognizance applying to him at the time.

[10]

The
    key issue at trial was identification: was the appellant, Cody Boast, the
    Cody who met the complainant and then, a day later, sent her harassing
    messages?

[11]

The
    landscape on this appeal is the same. The sole issue is identification. The
    appellant submits that the testimony of the complainant and her friend S.C. was
    insufficient to conclusively establish that the appellant was the person who
    sent the harassing messages to the complainant, either directly or through S.C.

[12]

We
    do not accept this submission. In our view, the trial judges analysis of, and
    conclusion about, the identification evidence were error-free. The trial judge
    properly considered the complainants evidence to be recognition evidence.  Her
    identification of the appellant was unquestionably based on their prior
    acquaintance.  The evidence established that the complainant and the appellant
    were together for several hours on the night of January 30-31, 2016. Although
    they had never met before, by the end of the evening they had been in close
    proximity for several hours in two or three bars and casinos, outside when the
    appellant suggested to the complainant that she could go home with him or
    Brandon in the appellants car, and in his home. They had also exchanged cell
    phone numbers and agreed to meet again at a university gymnasium.

[13]

Moreover,
    the trial judges approach to the complainants description to police contained
    no error. It was a detailed and accurate description.

[14]

Similarly,
    the trial judge did not err in relying on the complainants out-of-court
    Internet identification. Both this identification and the complainants
    in-court identification of the appellant were, at bottom, anchored in the
    lengthy contact, in close quarters and across several locations, between the
    complainant and the appellant.

[15]

In
    the end, the complainants identification of the appellant was not based on a
    fleeting glance at a person in a stressful situation (the context for many
    identifications in criminal trials). It was not an identification of a
    stranger. The trial judge said:

I am satisfied that, after the interactions with Cody on
    Saturday night and early Sunday morning, both [the appellant] and [S.C.] had a
    clear image of him. I am satisfied beyond a reasonable doubt that Cody Boast is
    the Cody whom [S.C.] and [the appellant] met at Mardi Gras on January 30, 2016.
    I am also satisfied beyond a reasonable doubt that 613-240-7551 was the cell
    phone number that Mr. Boast gave [the appellant] on January 30, 2016 so that
    she could contact him from her cell phone number.

[16]

We
    can see no basis for interfering with this analysis and conclusion.

[17]

The
    appeal is dismissed.

J.C. MacPherson J.A.

L.B. Roberts J.A.

David M. Paciocco J.A.


