



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Browne, 2021 ONCA 836

DATE: 20211124

DOCKET: C66627

Hourigan, Paciocco and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Vanroy Browne

Appellant

Delmar Doucette and Anne Marie Morphew,
    for the appellant

Jessica Smith Joy, for the respondent

Heard: June 23, 2021 by video conference

On appeal from the conviction entered on
    March 24, 2017, by Justice Steven A. Coroza of the Superior Court of Justice,
    sitting with a jury.

Hourigan
    J.A.:

I.        Introduction

[1]

On November 1, 2012, Dwayne Thompson was shot
    dead in a parking lot of an apartment building in Mississauga. The jury found
    the appellant and a co-accused, Amal Greensword, guilty of
    manslaughter but acquitted another co-accused, Adrian Williams.

[2]

On appeal, the appellant seeks to substitute an
    acquittal for the conviction or, in the alternative, obtain an order for a new
    trial. His primary submission is that the jurys verdict was unreasonable.
    In addition, he argues that the trial judge erred in admitting evidence about
    him giving his phone numbers to his probation officer.

[3]

As I will explain, I am not persuaded by these
    arguments. The verdict is not unreasonable, as it was available to the jury on
    the evidence. Further, I reject the submission that the trial judge erred in
    law regarding the admission of the evidence about the phone numbers. The
    provision of those numbers was not compelled and did not violate s. 7 of the
Canadian
    Charter of Rights and Freedoms
. Consequently, I would dismiss the appeal.

II.       Background Facts

[4]

To put the issues raised in their proper
    context, I will first review the facts surrounding the shooting. Then I will
    consider the evidence adduced at trial relevant to the issues raised on this
    appeal. That evidence relates to various themes, including the use of mobile
    phones, car rentals, DNA evidence and the appellants appearance. I note that
    none of the defendants testified or called any evidence.

(a)

The Events Surrounding the Shooting

[5]

On the day of the shooting, Mr. Thompson
    communicated by phone with someone known as "Scarface," who arranged
    to buy a substantial amount of cocaine from Mr. Thompson. Later that day, Mr.
    Thompson travelled to an apartment building on Darcel Avenue, Mississauga, to
    meet Scarface. Accompanying Mr. Thompson were Shawn Edwards, who drove, and a
    friend of Mr. Thompson's, Margaret Warner.

[6]

Mr. Edwards remained in the vehicle at the
    Darcel Avenue property while Mr. Thompson and Ms. Warner walked down the
    driveway and through the parking lot to the apartment building. Ms. Warner testified
    that as they walked through the lot, she saw three or four males running to a
    white car.

[7]

The video surveillance recording from the
    building lobby confirmed three men entered the lobby at around 10:03 or 10:04
    p.m. and left it at around 10:12 p.m., moments before Mr. Thompson and Ms.
    Warner entered.  All parties agreed that the appellant was not one of these
    three men, and the jury was charged accordingly.

[8]

Mr. Thompson and Ms. Warner entered the building
    and looked in the back lobby for Scarface. When they did not locate him, Mr.
    Thompson called Scarfaces phone but got no answer. As they waited in the
    lobby, Ms. Warner noticed the white car travel back and forth in front of
    the lobby. When Scarface did not attend, Ms. Warner and Mr. Thompson decided to
    leave and return to the vehicle where Mr. Edwards was waiting.

[9]

Mr. Thompson and Ms. Warner left the back lobby
    at around 10:27 p.m. Ms. Warner testified that the white car, with its
    doors open, was parked south of the lobby. She further testified that a man
    stood by the front passenger-side door holding a handgun, a second man stood by
    the curb, and a third man stood by the front driver-side door. Ms. Warner did
    not see a fourth man in or near the car.

[10]

According to Ms. Warner, the man with the gun
    rushed toward Mr. Thompson and, with one hand on the grip and his second
    hand steadying the other, put the gun to Mr. Thompsons head. A second man came
    off the curb and began to pat Mr. Thompson down. A short argument ensued, and at
    one-point Mr. Thompson was heard to say, "no, brah, no, brah, I dont
    have anything on me.

[11]

A few seconds later, as Ms. Warner continued to
    move quickly toward the vehicle and was no longer looking back, she heard a
    shot, the thud of Mr. Thompson's body hitting the ground, and then
    additional shots. Mr. Edwards heard the shots and began to pull out from where
    he was parked. When Ms. Warner ran up to his vehicle, he let her in and they
    sped off.

[12]

Ms. Warner testified that all four car doors of
    the white car were open. However, she said that she saw only three men by the
    vehicle and that the men in the parking lot were the same three men she had
    seen earlier coming out of the lobby. At the time of observing the men,
    Ms. Warner was not wearing her glasses for distance. She described the three
    men as all in all-dark clothing, wearing hats or hoods and added the
    following:

·

The first man (the gunman who shot Mr. Thompson)
    was a light-skinned Black man, about 58-59 and about 180 pounds, with
    scruffy facial hair and dreads or braids poking out below his hood.

·

The second man (who rushed down off the curb and
    frisked Mr. Thompson) was described as a very black and ugly Black
    man, about 510-511, who appeared to be chunky and weighed about 200 pounds.
    She called him a fatty, but suggested that he might have been wearing
    puffy clothing.

·

The third person (who stood by the front driver-side
    door) was described as a Black man in dark clothing.

[13]

A resident of the apartment building, Neville
    Henry, testified that he was on his balcony and saw four people in the parking
    lot before he heard gun shots. Shortly after the gun shots, he observed the four
    people running. Two fled to a white Chrysler and two ran toward the building.
    He was unable to provide a description of the people he observed but testified
    that they moved like males. He described the two people who ran toward the
    building, indicating that both were between five to six feet and in dark
    clothing.

[14]

Mr. Thompson suffered four gunshot wounds, and
    his body was located approximately 160 feet from the area where Ms. Warner said
    they initially encountered the men. Using the numbering of the Crowns expert,
    Dr. Pollanen, (which did not necessarily reflect the order of the shots), the
    first shot was to the left side of the head and traversed the brain. This
    wound was fatal. The second shot entered the left lower jaw and lodged in the
    back of the neck. This wound was potentially fatal. The third shot entered
    the back and went through his spleen, a lung and the heart. This wound was
    fatal. The fourth shot entered the back and lodged in the spine. This wound was
    not in and of itself fatal.

[15]

If the wounds were received in quick succession,
    as described by Ms. Warner and the residents in the building who heard the
    shots, Mr. Thompson would have dropped quickly and been rapidly incapacitated. There
    was no evidence on the body as to the range of the shots.

(b)

Mobile Phones

[16]

On October 23, 2012, after his release from
    custody, the appellant told his probation officer his contact phone number was
    647-862-9200. On November 26, 2012, he provided a different number,
    647-537-2507, to his probation officer.

[17]

At trial, it was an admitted fact that on
    October 18, 2012, Mr. Greensword, one of the co-accused, told his
    probation officer that his phone number was 647-606-9424, which was the same
    number as the Scarface number contacted by Mr. Thompson.

[18]

On November 1, 2012, there were eight texts
    between Mr. Thompson's BlackBerry and "Scarface." The evidence also
    established that Mr. Greensword's Scarface phone, the phone of Mr. Williams, and
    the appellants 9200 phone were near the scene at the time of the
    shooting.

(c)

Car Rentals

[19]

The trial judge found that Mr. Greensword was in
    possession of a white Dodge Avenger on November 1, 2012. The car had been
    rented on October 31, 2012, by a Mr. Gilbert Johnson, who then let Mr.
    Greensword access the vehicle. The trial judge found that the white Dodge
    Avenger was the car that Ms. Warner identified as traveling back and forth in
    front of the lobby.

[20]

Mr. Johnson and Mr. Greensword returned the
    Avenger to the rental agency approximately one week after renting the vehicle.
    They replaced it with a white Chrysler 200. Mr. Greensword used this car until
    November 9, 2012, when the police impounded it.

(d)

DNA Evidence

[21]

Fingernail clippings were taken from Mr.
    Thompson during his autopsy and sent to the Centre of Forensic Science (CFS) for
    DNA testing. The clippings were received as sealed items, with clippings from
    each hand sealed in separate envelopes. One swab was used to collect material
    from the underside of the fingernail clippings from the left hand and another
    for the right. Both swabs were then submitted for DNA analysis.

[22]

Two DNA profiles, one major and one minor, were
    found on the clippings from Mr. Thompsons left hand. Mr. Thompson was the
    source of the major DNA profile. The appellant could not be excluded as the
    source of the minor DNA profile. Dr. Maja Popovic, a scientist who works at the
    CFS, noted that the random match probability that someone other than the
    appellant was the source of the minor DNA profile found on Mr. Thompsons
    fingernails was one in 1.6 trillion.

[23]

Dr. Popovich testified that direct transfer with
    bodily fluid is the most common way that a significant amount of foreign DNA
    would be transferred to a persons fingernails. It was Dr. Popovichs opinion
    that the amount of the appellants DNA deposit on Mr. Thompson's fingernails
    was beyond a trace amount. She testified that, while it is not uncommon to find
    foreign DNA under fingernails, it is rare to detect foreign DNA in sufficient
    amounts to generate a useable DNA profile suitable for comparison, and a
    secondary transfer would be rare in this scenario.

(e)

Appellants Appearance

[24]

Ms. Success Akonzee, the appellants former
    girlfriend, testified that when the appellant returned to the Toronto
    area around October 20, 2012, he had dreadlocks almost to his shoulders. Police
    surveillance suggested he had his hair cut sometime before November 26, 2012.
    Given the lack of evidence showing a temporal connection between the shooting
    and the haircut, the trial judge instructed the jury not to use the haircut as
    after-the-fact conduct.

(f)

Verdict

[25]

The appellant and his co-defendants, Mr. Greensword
    and Mr. Williams, were tried for first-degree murder in Mr. Thompsons death.
    The jury found the appellant and Mr. Greensword not guilty of first-degree
    murder but guilty of the lesser included offence of manslaughter. They found Mr.
    Williams not guilty of any offence.

(g)

Reasons for Sentence

[26]

In his reasons for sentence, the trial judge was
    obliged, according to
R.  v. Ferguson,
2008 SCC 6, [2008] 1 S.C.R.
    96, to find facts consistent with the jurys manslaughter verdict to the extent
    that it was necessary to enable him to sentence the appellant and Mr.
    Greensword. He concluded that, given the manslaughter verdict, the jury
    found that the appellant was present and was one of the three men whom Ms.
    Warner described approaching Mr. Thompson after their exit from the lobby, but
    that he was not the shooter.

[27]

The trial judge found that the appellant was the
    darker male who came off the curb and frisked Mr. Thompson. In making this
    finding, he recognized that Ms. Warners description of the man who came
    off the curb was inconsistent with the appellant's appearance. However, he took
    into account that Ms. Warner's observations were made while she and the men
    were in motion, the parking lot was dark, and Ms. Warner was not wearing her
    corrective lenses.

[28]

The appellant was found to have aided the man
    with the gun by accompanying him, approaching Mr. Thompson, and accosting and
    confronting the deceased. Further, the trial judge concluded that the appellant
    would have appreciated that bodily harm was the foreseeable consequence of the
    dangerous activity undertaken by the man holding the gun.

(h)

Grounds of Appeal

[29]

The appellant raises two grounds of appeal: (i)
    the verdict was unreasonable, and (ii) the evidence that the appellant gave the
    9200 number to his probation officer was inadmissible.

III.      Analysis

(a)     Unreasonable Verdict

(i)      Legal Principles

[30]

The law regarding an unreasonable verdict ground
    of appeal is well settled. A verdict is reasonable if it is one that a properly
    instructed jury acting judicially could reasonably have rendered. In applying
    this standard, the appellate court should engage in a limited weighing of the evidence
    in light of the standard of proof and consider the effect of the evidence. 
    Where the Crowns case depends on circumstantial evidence, as in this case, the
    question becomes whether the trier of fact, acting judicially, could reasonably
    be satisfied that the accuseds guilt was the only reasonable conclusion
    available on the totality of the evidence:
R. v. Villaroman
, 2016 SCC
    33, [2016] 1 S.C.R. 1000, at para. 55.

[31]

In assessing an unreasonable verdict ground of
    appeal, the appellate court may consider an appellants failure to testify:
Corbett
    v. R.
, [1975] 2 S.C.R. 275, at pp. 280-81, and
R. v. Bains,
2015
    ONCA 677, 127 O.R. (3d) 545, at para. 164.

[32]

The existence of forensic evidence in an
    unreasonable verdict appeal is often important in establishing an accuseds
    connection with a crime. However, the reviewing court must first consider
    whether the whole of the evidence permits the inference that the forensic
    evidence was deposited in connection with the offence and not at some other
    time and place. Second, it must determine whether the appellants guilt is the
    only rational conclusion available on the totality of the evidence or lack of
    evidence:
R. v. Mars
(2006), 205 C.C.C. (3d) 376 (Ont.
    C.A.), at para. 19;
R. v. D.D.T.
, 2009 ONCA 918, at para. 15.

(ii)     Application of Legal Principles

[33]

The appellant asserts two arguments in support
    of his unreasonable verdict ground of appeal. First, he says that there is no
    evidence capable of supporting a finding beyond a reasonable doubt that he was
    at the scene and participated in the attack on Mr. Thompson. Second, he argues
    that the identification evidence was exculpatory.

[34]

I would not give effect to the submission that
    there was insufficient evidence placing the appellant at the scene of the
    shooting. In my view, there was substantial evidence supporting the jury's
    finding that he was there.

[35]

First, there was the DNA evidence, which suggested
    physical contact between the appellant and Mr. Thompson.  There is nothing to
    support the speculative arguments advanced by the appellant that it could have
    been deposited at some other time or place and then somehow transferred to Mr. Thompson.
    The suggestion that it might be the result of a secondary transfer is also contrary
    to the testimony of Dr. Popovic, who testified that the most common way to
    transfer significant amounts of DNA would be through direct transfer and that
    secondary transfer of such amounts would be rare.

[36]

In addition, there is no compelling evidence
    that suggests that the appellant and Mr. Thompson knew each other and that
    there were other, prior opportunities for direct transfer.  Certainly, the
    appellant did not testify that he had a prior association with Mr. Thompson.
    Furthermore, the mobile phone records adduced at trial do not show any contact
    from Mr. Thompson's phone to any phone associated with the appellant. Further, Ms.
    Akonzee testified that she had never seen the appellant with Mr. Thompson, nor
    did she know his name or nickname.

[37]

Consistent with the jurisprudence discussed
    above, the trial judge correctly instructed the jury regarding the DNA evidence
    that [t]he significance of this evidence will depend upon other evidenceheard
    in this trial. In my view, additional evidence supported the inference that
    the appellant's DNA was deposited during the homicide of Mr. Thompson. Further,
    that evidence is also responsive to the unreasonable verdict ground of appeal.

[38]

The mobile phone evidence supports a finding of
    guilt. The appellant advised his probation officer on October 23, 2012, that
    the 9200 number was his current phone number. Both the 9200 phone number and
    the phone number associated with Mr. Greensword were using the cell tower
    closest to the Darcel Avenue property in the lead-up to the shooting.

[39]

Further, between October 21, 2012, and November
    8, 2012, there were 448 communications between the 9200 number and Ms. Akonzee.
    The latter date was the day when the appellant activated a new phone. Finally,
    from October 26, 2012, to November 1, 2012, there were 98 contacts between the 9200
    number and Mr. Greenswords number.

[40]

I recognize that in the period between October
    29, 2012, at 8:07 p.m. and November 1 at 5:32 p.m., the appellant contacted Ms.
    Akonzee via a different phone number. However, communications resumed with Ms.
    Akonzee via the 9200 phone number on November 2, 2012, two hours after the
    shooting.

[41]

The next body of circumstantial evidence to
    support the inference that the DNA was deposited at the time of the shooting is
    the association evidence between the appellant and Mr. Greensword.

[42]

The evidence established that Mr. Greensword was
    exclusively using the white Avenger rental car at the time of the shooting.
    There is a video from a Petro Canada station in Toronto on the evening of
    November 2, 2012, which appears to show Mr. Greensword and the appellant arriving
    in the Avenger and then purchasing gas. At the time of the video, the 9200
    number was using a cell tower in the vicinity of the Petro Canada station.

[43]

On November 9, 2012, police conducted a routine
    traffic stop of the Chrysler 2000. Mr. Greensword was driving it. The person in
    the front passenger seat would not identify himself but was later identified as
    the appellant. A subsequent search of the vehicle disclosed, among other things,
    the appellants probation order, a receipt in the name of Ms. Akonzee, and a receipt
    from the Petro Canada station with a date and time that correspond with the
    date and time of the video surveillance. In addition, mobile phone records show
    that the appellants new phone was using a cell tower located within 100 meters
    of the traffic stop.

[44]

Finally, there is the post offence conduct. The
    Crown submitted that the appellant changed his phone on November 8, 2012, in an
    effort to distance himself from the shooting. The appellant provided the new
    number to his probation officer on November 26, 2012, and there were regular
    and ongoing communications between it and Ms. Akonzee.

[45]

The jury was instructed that they could consider
    this evidence if they found (i) that the appellant did change phone numbers
    after Mr. Thompson was killed and (ii) that this change in phone numbers was
    related to the offence charged. If these findings were made, the jury was
    entitled to consider this evidence to assist in determining whether the
    appellant participated in the shooting. The appellant does not challenge this
    instruction. Consequently, it was open to the jury to find that the change of
    phone number was related to his participation in the shooting and supportive of
    the inference that his DNA was deposited at that time.

[46]

Given this evidence, the appellants argument
    that there was an insufficient evidentiary basis to find that he was at the
    scene is unpersuasive. The next question is the reasonableness of the jury's
    findings regarding the role played by the appellant. I agree with the trial
    judge that based on the verdict of manslaughter, the jury could not reasonably
    have found the appellant was the shooter, given that the nature of the shots
    fired disclosed the requisite
mens rea
for murder.

[47]

The appellant argues that the theory of the
    Crown throughout the trial was that he was the shooter. Therefore, he submits
    that a verdict of manslaughter was unreasonable in the circumstances of the
    case. In support of this argument, the appellant makes much of the evidence of
    Ms. Warner regarding her descriptions of the assailants. He relies on
Chartier
    v. Quebec
(
Attorney General),
[1979] 2 S.C.R. 47, for the
    proposition that where there is a material inconsistency between an eyewitness
    description of a perpetrator and the known appearance of the accused at the
    time, there is no identification. According to the appellant, Ms. Warner gave
    uncontradicted exculpatory identification evidence, rendering the jury's
    verdict unreasonable. I would not give effect to this submission.

[48]

The rule in
Chartier
applies
    to cases in which there is a clear dissimilarity in the witness's
    identification coupled with a lack of supporting evidence:
R. v. Dimitrov
(2003), 68 O.R. (3d) 641 (C.A.), at para. 18. In the case at bar, as discussed,
    there was ample evidence tying the appellant to the shooting beyond the
    identification evidence, including the DNA and mobile phone evidence.

[49]

It is also important to remember that
Chartier
was not a jury case and is not authority for the proposition that in a jury
    trial, it is the trial judge's function to decide whether there are significant
    discrepancies in appearance.  These are factual questions that arise out
    of the evidence and, like other factual questions, are for the jury to decide:
R.
    v. Savoury
(2005), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 13. The evidence
    of Ms. Warner was not clear and reliable regarding her description of the
    assailants. She was not wearing her glasses at the time and saw the men only
    briefly. In any event, the jury was instructed that Ms. Warners descriptions
    and the appearance of the defendants could be used to raise a reasonable doubt.
    It was up to the jury to weigh this evidence along with the other evidence
    adduced at trial.

[50]

Ultimately, I am satisfied that the manslaughter
    verdict was reasonable. I note that the parties agreed that manslaughter was an
    available verdict. Further, the non-trace amount of the appellants DNA was
    consistent with him physically attacking Mr. Thompson. Ms. Warner did not
    purport to see all the events leading up to the shooting or the shooting
    itself. Given the limitations of Ms. Warners evidence and the existence of
    other evidence tying the appellant to the scene, a reasonable trier of fact
    could have been satisfied beyond a reasonable doubt that the appellant was present
    and one of the men who participated in the attack but have a reasonable doubt
    about whether he was the shooter. The jury was not obliged to accept the Crown
    theory that the appellant was the shooter and was not obliged to acquit when
    they did not accept this theory.

(b)     Admission of Phone Numbers

[51]

The appellant was in custody on unrelated
    charges until his release on October 20, 2012. He then became subject to the
    conditions of a probation order, including the condition that he report in
    person to his probation officer within two days of his release. At the time of
    his release, a probation officer explained to the appellant that he could be
    prosecuted for breaching his probation order.

[52]

When the appellant reported to his probation
    officer on October 23, 2012, the probation officer requested the appellant
    provide his address and phone number. Pursuant to this request, the appellant gave
    his 9200 phone number. On November 26, 2012, he provided a different number to
    his probation officer. Mr. Greensword also gave his mobile phone number to
    his probation officer. The police obtained the phone numbers from the probation
    officers and obtained production orders for the records associated with those
    numbers.

[53]

The appellant and Mr. Greensword brought an
    application seeking to exclude the evidence regarding the phone numbers on the
    grounds that: (i) the Crown had not proven that the phone numbers were provided
    voluntarily to the probation officers; (ii) the disclosure of the phone numbers
    by the probation officers to the police violated the s. 8
Charter
rights
    of the accused; and (iii) the statements to the probation officers were
    compelled statements, and the admission of this evidence infringed s. 7 of the
Charter
.

[54]

The appellants probation officer testified on
    the
voir dire
that the provision of a phone number was not required as
    part of the probation order, and failure to provide a phone number would not
    result in a breach of the probation order. Neither the appellant nor Mr.
    Greensword testified on the
voir dire
.

[55]

The trial judge first considered whether the
    phone numbers were voluntarily provided. Relying on
R. v. S.G.T.
, 2010
    SCC 20, [2010] 1 S.C.R. 688, he correctly observed that the appellant had an
    evidentiary burden to establish that the receiver of the statement was in a position
    of authority. The trial judge was not satisfied that when the appellant made
    the statements regarding his phone numbers that the probation officer was
    acting in concert with or for the police. He noted that when the 9200 number
    was given, the shooting had not yet taken place. When the second number was
    given, there was an existing investigation, but the trial judge found that the
    probation officers were not involved in the investigation, apprehension and
    prosecution of a criminal offence. Consequently, he ruled that the Crown was
    not required to establish the voluntariness of any statements made by the
    appellant to the probation officer relating to his phone numbers.

[56]

Regarding the alleged s. 8 breach, the trial
    judge ruled that the phone numbers do not reveal core biographical data that
    constitute intimate and private information about the accused. Furthermore, he noted
    that the appellant did not testify, and thus there was no evidence of his
    subjective belief that he had a reasonable expectation of privacy. The trial
    judge also concluded that neither the police officers nor the probation
    officers violated the
Ministry of Correctional Services Act
, R.S.O.
    1990, c. M. 22, in exchanging the information about the phone numbers. Accordingly,
    he found that there was no s. 8 breach.

[57]

Concerning the alleged s. 7 breach, the trial
    judge focused on the core issue of whether the appellant held an honest and
    reasonable belief that he was required by law to provide the phone numbers,
    noting that the appellant had the onus on the s. 7 application.

[58]

The trial judge found that the appellant had not
    met his onus, as there was no evidence that he had a subjective and reasonably
    held belief that he must provide a phone number and, objectively, there was no evidence
    that would suggest the statement was compelled. In support of this conclusion, the
    trial judge relied on the following:

·

First, since that the appellant did not testify,
    there was no direct evidence of his subjective belief.

·

Second, there was no requirement for a phone
    number on the probation orders, and there could be no charge of breach of
    probation for failing to provide the number. Thus, there is no evidence that
    the appellant believed that a failure to provide the phone number would have
    led to a breach charge.

·

Third, he was not satisfied that the direction
    provided to each accused, as part of their intake, to provide a phone number
    objectively meant that the accused were compelled to make the statements to the
    probation officer, because the intake interview and direction did not have the
    force of a probation order.

·

Fourth, he did not find that the probation
    officers created any psychological or emotional pressure on the appellant to
    make the statements. In that regard, he observed that probation officers
    simultaneously perform two distinct functions, rehabilitation and enforcement.

[59]

On appeal, the appellant submits that the trial
    judge erred in not finding that his provision of the phone numbers was a
    compelled statement taken in violation of s. 7. He submits that the trial judge
    failed to consider that two probation officers explained to him that he could
    be prosecuted for violating his probation order. Further, he argues that he was
    subjected to a high level of coercion to provide his phone number and that he
    was in an adversarial relationship with the probation officers.

[60]

These submissions are unpersuasive. The trial
    judge carefully considered these issues, and I concur with and adopt his
    analysis. As noted, the appellant did not testify, and thus there was no direct
    evidence that he felt coerced to provide his telephone number. Nor am I
    satisfied that coercion can be inferred in the circumstances. The intake form filled
    out by the appellant indeed included a section that asked for a "telephone
    number, where you can be reached." However, the probation officer
    testified that the order did not have a term that a phone number be provided.
    Further, she testified that she did not tell the appellant that the failure to
    provide a phone number would be considered a breach of the probation order.

[61]

The appellants reliance on
R. v. Charles
,
    2013 ONSC 6704, affd 2016 ONCA 892, is misplaced. Charles had provided the
    probation office with several phone numbers in a probation intake form. In a
    subsequent voice mail message, he also left a mobile phone number (the mobile
    phone number). The link between Charles and the mobile phone number was
    incriminating. At his trial, Charles sought the exclusion of evidence that he
    had provided the mobile phone number to the probation officer, claiming that he
    had done so under coercion. The trial judge disagreed and admitted the
    evidence. In explaining that decision, the trial judge contrasted Charles
    provision of his home phone numbers in the probation intake form, commenting
    that Charles had a reasonably held belief that the provision of his home phone
    number on the probation intake form was mandatory:
Charles
, at para.
    32. This
obiter
comment by the trial judge is of no assistance to the
    appellant. The cases are factually distinguishable. In
Charles
, the
    evidence of the probation officer was that the provision of a phone number was
    mandatory if a client was attending counselling: at para. 17. Moreover, the
    appellant, in that case, testified that he felt coerced.

[62]

Based on the foregoing, I would not give effect
    to this ground of appeal.

IV.     Disposition

[63]

I would dismiss the appeal.

Released: November 24, 2021 CWH

C.W.
    Hourigan J.A.

I
    agree. David M. Paciocco J.A.

I
    agree. B. Zarnett J.A.


