



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Labelle, 2021 ONCA 78

DATE: 20210205

DOCKET: C65101

van Rensburg, Benotto and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pierre Labelle

Appellant

Michael W. Lacy and Bryan Badali, for
    the appellant

Eric W. Taylor, for the respondent

Heard: December 2, 2020 by video conference

On appeal from the conviction entered on
    June 13, 2017 by Justice David A. Thomas of the Ontario Court of Justice.

van Rensburg J.A.:

A.

OVERVIEW

[1]

In April 2015, the Greater Sudbury Police Service
    received complaints from six women over an approximate 48-hour period stating
    that a man in a vehicle had followed them, or accosted them, ensuring they saw
    him masturbate or asking them to watch him doing so. The appellant was
    convicted of a number of offences in relation to the events that were alleged
    to have occurred between April 28 and 30, 2015: two counts of performing an
    indecent act (
Criminal Code
, R.S.C. 1985, c. C-46, s. 173(1)), two
    counts of criminal harassment (s. 264(1)), and two counts of communicating with
    a person for the purpose of obtaining sexual services from a person under the
    age of 18 (s. 286.1(2)).

[2]

The primary issue at trial was the identity of
    the person who committed the various acts. All of the complainants provided
    descriptions of the assailant; there was evidence from only one complainant
    identifying the appellant in a photo line‑up and in court. The trial
    judge granted the Crowns similar fact evidence application, permitting the use
    of the evidence of the complainants across counts, and excluding evidence of an
    off-indictment event.

[3]

The appellant appeals his convictions. He seeks
    an acquittal in respect of one of the criminal harassment charges and a new
    trial on the remaining counts. The appellant argues that: (1) the trial judge
    erred in his treatment of the non-identification evidence of two
    complainants, E.S. and C.L., which had a bearing on all of the convictions; (2)
    the verdict of guilt on the charge of criminal harassment against J.V. was
    unreasonable because the essential elements of the offence were not made out;
    and (3) the trial judge improperly used his finding that the appellant was
    willing to fabricate evidence as positive evidence of guilt in convicting him
    of the various offences. The similar fact evidence ruling is not at issue in
    this appeal.

[4]

For the reasons that follow I would dismiss the
    appeal. The trial judges treatment of the evidence that E.S. had failed to
    identify the appellant in court and C.L.s evidence that she knew Pierre
    Labelle but was never asked to identify the perpetrator was sufficient; the
    trial judge was not required to explain specifically why such evidence did not
    raise a reasonable doubt on the question of identity. The appellants
    conviction for the criminal harassment of J.V. was reasonable, as the elements
    of the offence were made out beyond a reasonable doubt on the evidence.
    Finally, I do not accept that the trial judge erred in his treatment of the
    appellants evidence. He referred to the appellants willingness to fabricate
    evidence to explain why he rejected the evidence of the appellant, and not as
    positive evidence of guilt.

[5]

I begin by summarizing the relevant evidence at
    trial and the trial judges reasons, and then turn to the issues on appeal and
    their resolution.

B.

EVIDENCE AT TRIAL

(1)

The Crowns Evidence

[6]

The appellants sexual services convictions were
    based on events that took place on April 28, 2015 involving E.S. and A.L. One
    of his criminal harassment convictions and one of the indecent act convictions
    were based on the incidents on April 29 and 30, 2015, involving T.C. The other
    indecent act conviction was based on the incident involving C.L. on April 30,
    2015. The appellant was also convicted of criminal harassment based on events
    that occurred the evening of April 30, 2015, described by J.V.

(a)

The E.S. and A.L. Incident: April 28, 2015

[7]

E.S. and A.L. testified that on April 28, 2015,
    they were 14 and 13 years old respectively, and on their way to a medical clinic
    around supper time. They approached a man in a white vehicle at some mailboxes
    and asked if he knew where a certain road was located as they were looking for
    a bus stop. According to E.S., the man gave them a really uncomforting look
    and told them he did not know. A.L. testified that after they had first seen
    the man at the mailboxes, E.S. realized that she had forgotten her bus pass and
    went home to retrieve it, and that when A.L. continued walking to the bus stop,
    she had seen him again and he asked if they had found the road they were
    looking for.

[8]

E.S. also testified that they saw the same man
    drive past them twice and noticed his vehicle driving alongside the bus once
    they boarded. After they arrived at their destination, E.S. and A.L. were
    walking around when they saw the same man parked, with his window down, looking
    at them. He gestured for them to come over. He held out some money and asked if
    they wanted to watch him play with himself for five dollars. After the girls
    refused, he offered more money, asked if they would like to give him a hand
    job, and invited them to get in the car. They quickly left and sought refuge in
    a nearby convenience store.

[9]

E.S. described the man as white, not bad
    looking, fit and like a dad who was bringing his kids to soccer practice.
    He was wearing a baseball cap, a white t-shirt and prescription sunglasses.
    When asked do you recognize the man you saw that day in the courtroom today?,
    E.S. responded [n]o. E.S. described the vehicle the man was in as a white
    SUV. A.L. described the man as having blondish short hair, wearing a white
    hat, in around his 40s. She did not recall what he was wearing or if he had
    facial hair. She described his vehicle as a white minivan.

(b)

The T.C. Incidents: April 29 and 30, 2015

[10]

The incidents involving T.C. took place on two
    days as she was walking home from work shortly after 10 a.m. T.C. testified
    that she was 19 years old when a man pulled up beside her in a newer white Jeep
    Cherokee and asked if she wanted a ride home. She said, [n]o, thank you. As
    she continued to walk home she saw the same man, who again asked if she wanted
    a ride home. She said no and that she was almost home. She described the man
    she saw that day as wearing a t-shirt and jeans, but she could not recall
    whether he was wearing a hat. The next day, April 30, the same man pulled up
    alongside her at the same location at around the same time and asked if she
    wanted a ride home. This time she noticed that he was wearing shorts but had
    them pulled down and was masturbating. The man asked T.C. if she wanted to come
    inside the vehicle and watch him masturbate, promising not to touch her, or to
    do anything to her. She declined. He kept pushing, saying it would be okay, and
    again she refused. She felt very uneasy and sick to her stomach and just wanted
    to get home and lock the doors. As T.C. reached her house, the same man pulled
    over in his vehicle, handed her a piece of paper and said, [y]ou should text
    me. T.C. tried to take the paper but the man kept a firm hold on it and it
    ripped. The torn paper was part of a receipt from Food Basics, on which was
    written, You are so hot, text me. T.C. described the man as around six feet
    tall, from what she could see, and as being white and fairly tanned, with short
    brown hair. She did not notice any tattoos. T.C. identified the appellant as
    the man involved in the incidents both in a photo line-up and in the courtroom.

[11]

Using the information on the torn receipt, a
    Food Basics store manager was able to note the exact time and location the
    purchases were made and was able to provide the police with video footage of a
    man and a woman making the purchases.

[12]

T.C. told her stepfather what had happened
    during supper on April 30 and her stepfather decided to drive around that
    evening to see if he could see the vehicle she had described. He testified that
    from around 6:30 to 7:30 p.m., he had been driving through his subdivision and
    a nearby subdivision, where he had seen a white Jeep Cherokee, followed it, and
    taken down the licence plate number, which he gave to the police.

(c)

The T.L. Incident: April 30, 2015

[13]

The next incident took place on April 30, 2015 between
    10:30 and 11:00 a.m. T.L. testified that, while she was sitting in her car in a
    parking lot, a man in a newer, white SUV pulled up beside her vehicle and asked
    if she wanted to watch him masturbate. She said no and he drove away. T.L.
    described the man as Caucasian and between the ages of 30 and 40, with very
    short light brown hair and wearing a plain t-shirt. (A directed verdict
    application was allowed in part, resulting in the dismissal of the criminal
    harassment charge respecting the T.L. incident.)

(d)

The C.L. Incident: April 30, 2015

[14]

C.L. testified that at around 11:00 a.m. on
    April 30, 2015, she was parked outside a pharmacy, waiting for her daughters
    prescription to be filled, when a man in a white Jeep pulled up beside her with
    the window down. She could see inside the vehicle that the man had his pants
    down and was masturbating and looking at her. C.L. described the man as having
    fairly dark hair with a really short haircut and wearing a grey t-shirt and
    grey track pants that were pushed down to just above his knees. She noticed a
    dark tattoo on his right arm. He was about six feet tall and was in his mid to
    late 30s. At the time there was nothing obstructing her view.

[15]

Under cross-examination there was the following
    exchange (which formed the basis of the appellants unsuccessful directed
    verdict application in relation to the C.L. incident charge and is relevant to
    the appellants first ground of appeal  that C.L. knew the appellant and
    failed to identify him in court):

Q.      Now, you knew Pierre Labelle before
    that day?

A.      Im sorry?

Q.
         Pierre Labelle was known to you before that day? Hed been to your house?

A.      Yes. Correct.

Q.
         In fact, he and your brother used to go to work together?

A.      Correct.

Q.
         And his vehicle had been parked in your driveway a few times?

A.      Correct.

[16]

C.L.s daughter H.T. testified that she saw a
    white vehicle pull up beside her mothers truck. She described the man in the
    car as white, in his 40s to 50s, wearing a grey t-shirt, possibly a baseball
    hat and having a dark tattoo on his arm. She confirmed that she never saw the
    mans face, nor did she see him do anything improper.

[17]

H.T. was asked whether she had seen Pierre
    Labelle at the house before, but she did not recall. It was suggested that she
    had seen his car parked in their driveway and that he used to ride to work
    together with her uncle. She responded, Ive never seen his vehicle, but I
    have seen him go to work with my uncle a couple times.

(e)

The J.V. Incident: April 30, 2015

[18]

J.V. testified that on April 30, 2015, when she
    was 16 years old, she was walking home at around 7 p.m., when she noticed a man
    in a newer white Jeep SUV. She saw him a total of five times as she was
    walking, and she had started to feel he was following her. The last time he was
    parked. She did not feel safe, so she screamed at the driver to fuck off and
    she called her sister. J.V. described the man as white, wearing a white muscle
    shirt and with short brown hair. She thought he had a dark tattoo on his right
    upper bicep.

(f)

Other Crown Evidence

[19]

Two of the Crown witnesses were acquaintances of
    the appellant, M.S. and C.A. M.S. confirmed that the appellants fiancée worked
    with her at a restaurant from 10 a.m. to 4 p.m. on April 28, 29, and 30, 2015
    and that the appellant would drive his fiancée to and from work. She confirmed
    that the appellant had a tribal tattoo on one of his arms. She pointed out the
    appellants tattoo on a video from her workplace, as well as the white baseball
    cap that she said he always wore. M.S. also identified the appellant in the
    video that the police obtained using the Food Basics receipt that was given to
    T.C. She testified that the appellant stopped wearing his baseball cap and cut
    his hair very short after he heard that the police were looking for someone who
    was approaching young girls and flashing them. C.A. confirmed that the
    appellant normally wore a white baseball cap and that shortly before the
    appellant was arrested, he borrowed a shaving device from C.A. and used it to give
    himself a noticeably shorter haircut. A police detective testified about a
    composite map showing that all of the incidents occurred within a
    five-kilometre radius of the appellants home and in close proximity to his
    fiancées workplace. The detective also testified that he had run the licence
    plate provided by T.C.s stepfather and that the plate belonged to a 2014 Jeep
    Cherokee that was registered to the appellant.

(2)

The Defence Evidence

[20]

The appellant testified and denied all of the
    allegations. He was 48 years old when he testified, and he was living with his
    fiancée and her daughter in 2015. He admitted to owning a 2014 white Jeep
    Cherokee at the relevant time, and to having a white baseball cap that he
    sometimes wore. Relying on notes he had made shortly after his arrest about
    what he was doing on April 28 to 30, 2015, the appellant provided evidence
    seeking to establish a partial alibi in relation to the allegations. He
    testified that he had been in the bathtub, working out, or otherwise engaged in
    some activity when each of the incidents occurred. The appellant acknowledged
    having been at the same medical clinic as E.S. and A.L. on April 28 at around
    the time they said they were accosted, but he explained that he was there to
    get some documentation about his carpal tunnel syndrome, and he denied having
    accosted them. He acknowledged using the mailboxes where E.S. and A.L. asked a
    man for directions, but he denied being that man. The appellant identified
    himself and his fiancée in the Food Basics video, but he denied that he gave
    the partial receipt containing a note to T.C. He did not recall shaving his
    head around the time that people were talking about a man driving around in a
    white Jeep masturbating in front of women, and he could not recall having worn
    his white baseball cap less frequently after April 30. When asked if he knew
    C.L. or her brother the appellant replied, [n]o, unless her brothers Justin
    Revist (ph). Thats the only person I travelled with, with my Jeep.

[21]

The appellants fiancées daughter testified
    that on the dates in question, she was at home and not in school because her
    teachers were on strike. Her evidence was that she woke up each day around
    10-10:30 a.m. and heard water running in the bathtub and that it had to be the
    appellant in the tub because her mother was at work. The appellants fiancée
    testified that the appellant dropped her off at work each day for 10 a.m. on
    the dates in question. She identified herself and the appellant in the Food
    Basics video but said that some of the items listed on the receipt were things
    they would not buy. Both also testified that they could not recall and did not
    think that the appellant had left the house to run an errand in the evening on
    April 30.

C.

THE TRIAL JUDGES REASONS FOR JUDGMENT

[22]

The trial proceeded as a combined
voir dire
on the admissibility of similar fact evidence and the trial proper of the
    charges. The similar fact application was allowed in part, with the evidence
    concerning an off-indictment incident excluded.

[23]

The trial judge noted that most of the defence
    evidence, other than the appellants denials and partial alibi evidence,
    corroborated the Crown evidence in many respects: the descriptions of the
    person who committed the offences were consistent with the appellants age,
    weight, tattoo, height, tanned complexion, and thinning short brown hair, and with
    his evidence that he frequently wore a white baseball cap and drove a 2014
    white Jeep Cherokee.

[24]

The trial judge found that the appellants flat
    denials were not reliable or accurate. The appellants denial that he stopped
    wearing the white baseball cap after finding out that the community was aware
    of a man in a white Jeep prowling the area, and his inability to remember
    cutting his hair, were incredible and not capable of belief. The trial judge
    said, with respect to the appellants evidence about the hat and the haircut:
    This is arguably a more ancillary issue, but the court finds it to be
    indicative of his willingness to fabricate evidence favourable to himself.

[25]

The trial judge held that the evidence of the
    appellants fiancées daughter could not be relied upon. She was no doubt doing
    her best to assist her stepfather, but her precise memory of conveniently
    waking up between 10:15 and 10:30 each morning was not reliable. Moreover, her
    evidence that she did not speak to the appellant about the charges or have her
    mother help in drafting her statement was unreliable. The trial judge stated
    that, even if he had accepted the partial alibi evidence provided by the
    appellants fiancées daughter, he would not have had a reasonable doubt
    because the timing still allowed for all of the incidents to have occurred as
    the Crown witnesses had testified. Further, the evidence of the appellants
    fiancée did not provide much, if any, defence to the allegations.

[26]

The trial judge referred to the inability of
    E.S. to identify anyone in court when asked whether she saw the individual she
    had described, but he did not comment on it further. He also referred to the
    cross-examination of C.L. and her evidence that she did know
a
Pierre
    Labelle. He noted that neither counsel had asked whether the Pierre Labelle that
    C.L. was talking about was the Pierre Labelle before the court, and more
    importantly, the man she had seen masturbating beside her in the white Jeep.

[27]

The trial judge noted that this was not a purely
    circumstantial case because T.C. identified the appellant in a photo line-up
    after seeing him on four occasions over two days. The trial judge noted the
    frailties of this kind of evidence and said that, if T.C.s identification had
    been the only identification evidence available, it would likely not be
    sufficient to find guilt beyond a reasonable doubt. However, the evidence from
    the receipt that was handed to T.C. and produced by the register at Food Basics
    at the exact time when the appellant was at the store, and which was proved by
    video evidence, provided unassailable corroboration identifying the appellant
    as T.C.s assailant.

[28]

The trial judge stated that it would also defy
    logic and common sense to suggest that another man matching the appellants
    physical description and driving a white Jeep Cherokee was also checking the
    mailboxes at the same time that E.S. and A.L. were catching a bus and then
    attending at the same medical clinic where E.S. and A.L. were accosted. He also
    concluded that it defied logic and common sense to suggest that another man
    with the same vehicle and physical description would be accosting J.V. at the
    same time that the appellants Jeep Cherokee was seen in the vicinity by T.C.s
    stepfather (as confirmed by its licence plate).

D.

ISSUE ONE: DID THE TRIAL JUDGE ERR IN HIS
    TREATMENT OF CERTAIN NON-IDENTIFICATION EVIDENCE?

[29]

The appellant submits that the trial judges
    treatment of the non-identification evidence of E.S. and C.L. was inadequate.
    The appellant also argues on appeal (but did not argue at trial) that the trial
    judge should have taken into consideration the fact that none of the
    complainants other than T.C. had identified the appellant in pre-trial
    proceedings or in court. The appellant framed these submissions as
    insufficiency of reasons.

[30]

E.S. was unable to identify in the courtroom the
    man who had accosted her. The appellant contends that, while the trial judge
    referred to this fact, he did not take into consideration the non-identification
    in determining whether such evidence raised a reasonable doubt. As for C.L.,
    the appellant argues that it was an error for the trial judge to fail to
    consider the fact that there was no identification evidence from C.L., when she
    was previously acquainted with the appellant. While neither party asked C.L. to
    identify the appellant, the burden was on the Crown to prove its case, and the
    trial judge failed to explain why that gap in the Crowns evidence did not
    raise a reasonable doubt. The appellant also contends that the trial judge
    misapprehended the evidence, when, in his reasons on the directed verdict
    application, he speculated that the inability of C.L. to identify the appellant
    arose from her position in the vehicle, which likely precluded her from really
    having any sightlines to his face.

[31]

The appellant asserts that a new trial is
    required on the counts related to E.S. and C.L., and, in light of the similar
    fact ruling, in relation to the other counts as well. The appellant relies on
    the Supreme Court decision in
R. v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R.
    445, at para. 49, where the majority said, the inability of a witness to
    identify the accused in court as the perpetrator is entitled to some weight.
    (See also
R. v. Ranger
(2003), 178 C.C.C. (3d) 375 (Ont. C.A.), at
    para. 171.)

[32]

The Crown submits that there would have been a
    positive obligation on the trial judge to address the failure of E.S. and C.L.
    to identify the appellant in court and to explain why this did not raise a
    reasonable doubt on identity, if there had been some probative exculpatory
    value to this evidence. According to the Crown, the failure of E.S. and C.L. to
    identify the appellant was meaningless because neither was asked whether she
    believed that she would be able to identify the man who accosted her. The Crown
    points out that each of the
Hibbert
and
Ranger
cases involved
    an eyewitness who, after having identified an accused in a photo line-up and having
    expressed confidence about being able to identify the accused, was then unable
    to identify the accused in court (
Hibbert
,

at paras. 18-19;
Ranger
,

at para. 165).

[33]

I would dismiss this ground of appeal.

[34]

E.S. did not recognize the appellant in court as
    the man who accosted her. There was no evidence as to whether she had
    previously identified the appellant in a photo line-up or at all, and she was
    not asked whether she thought she would be able to identify her assailant
    before she was asked whether she recognized him in the courtroom. Instead, she
    was asked to generally describe the man that she saw, and she offered a
    description that was similar to those that were provided by the other
    complainants, saying that he looked like a dad, that he was wearing a
    baseball cap, a white t-shirt and sunglasses and that he was white, not bad
    looking and looked fit, like he was in good health.

[35]

C.L. was asked in cross-examination whether she
    knew Pierre Labelle and she confirmed that Pierre Labelle used to travel with
    her brother to work and had parked in her driveway. She was not asked to make
    an in-court identification of the man who had been masturbating in the vehicle
    next to her. The appellant testified that he did not know C.L.

[36]

In his reasons for judgment the trial judge simply
    referred to this evidence as C.L. advising that she did know a Pierre Labelle
    and that [n]either counsel, however, asked her whether the Pierre Labelle she
    was talking about was the Pierre Labelle before the court, and more
    importantly, the man she had seen masturbating beside her  in the white Jeep.
    He had previously addressed the evidence in greater detail in his reasons for
    dismissing the directed verdict application in relation to the C.L. incident. The
    trial judge observed in his reasons on the directed verdict application:

Theres no temporal context provided as to
    when this ever occurred, but at any rate, that she knew a Pierre Labelle.
    Now, that observation was, if I might say, just left hanging there. There was
    no follow-up by either the defence, nor the prosecution in re-examination, as
    to whether the man that [C.L.] described knowing as Pierre Labelle, was present
    in court, and if so, whether the Pierre Labelle that she may have identified in
    court, was the man who she saw masturbating from her vehicle. She was never
    asked those questions. As I say, it was simply left, whether she knew a Pierre
    Labelle. Certainly, its far from clear that she was referring to the defendant
    before the court, I assume that that was the suggestion, but as I say again,
    she wasnt asked any further questions in that regard.

[37]

The trial judge went on to note that, given
    C.L.s strong response about how the event made her feel, one would expect
    that if it was the defendant before the Court, she would certainly have noted
    it, but again, she simply was not asked. He referred to the configuration of
    the two vehicles, that C.L. was seated higher in her vehicle looking down into
    the Jeep across to the drivers seat where he was masturbating, that her focus
    would have been on his torso area and not particularly concerned with his
    facial features, and that her being seated somewhat higher likely precluded
    her from really having any sightlines to his face in any event.

[38]

I do not agree that the trial judge was unfair
    to C.L.s evidence about knowing Pierre Labelle or that he misapprehended the
    evidence that C.L. knew the appellant and had the opportunity to see him to the
    extent that she would have identified him if he had been the person who had
    been involved in the incident. The trial judge appreciated that the point of
    defence counsels question was to suggest to C.L. that she knew the appellant,
    but he concluded that the evidence that was elicited only confirmed that she
    knew a Pierre Labelle. This was because, as the trial judge observed, her
    answer was left hanging. She was not asked about the context in which she
    knew Pierre Labelle, nor was she asked to identify the appellant as the Pierre
    Labelle she knew, and more importantly, as the man involved in the incident.
    Indeed, on appeal, the appellant acknowledges that defence counsel could have
    asked C.L. additional questions to establish stronger non-identification evidence.

[39]

The trial judges observation that C.L. may not
    have had a good view of the mans face was consistent with her evidence, in
    which she described what he was wearing and doing but said all I got was a
    side view of his face.

[40]

I agree with the Crown that in this case the
    non-identification evidence was not exculpatory and had no probative value,
    as there was no suggestion that the witnesses would have been able to identify
    the perpetrator. There was no evidence they had made a previous identification,
    nor were they asked whether they thought they would be able to identify the
    person if they saw him again (as in
Hibbert

and
Ranger
).
    The trial judge could not be faulted in these circumstances for failing to deal
    with the non-identification evidence other than in the way he did. There was no
    obligation in the circumstances for the trial judge to explain why such
    evidence did not raise a reasonable doubt.

[41]

E.S. and C.L., as well as all of the other
    complainants, provided consistent general descriptions of the mans appearance.
    This evidence together with the cross-count similar fact evidence, which
    included the compelling evidence identifying the appellant as the perpetrator
    of the offence involving T.C., including her photo line-up identification, the
    torn Food Basics receipt, and the identification of the appellant at the
    grocery store in video footage, was sufficient to establish that the appellant
    was the perpetrator of all of the offences.

E.

ISSUE TWO: WAS THE APPELLANTS CONVICTION FOR CRIMINAL HARASSMENT OF
    J.V. UNREASONABLE?

[42]

The appellant asserts that his conviction for criminal harassment of
    J.V. was unreasonable: that no jury, acting judicially, could reasonably have
    come to a verdict of guilt on the criminal harassment charge in this case that
    depended substantially on circumstantial evidence: see
R. v. Villaroman
,
    2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[43]

The appellant submits that, beyond the trial
    judges finding on identity that it defies logic and common sense to suggest
    another man driving a white Jeep Cherokee and matching Mr. Labelles physical
    description  would be accosting [J.V.], the trial judge did not assess
    whether any of the other elements of criminal harassment had been established.
    At most, J.V.s evidence can establish that she was followed from place to
    place and feared for her safety. The appellant submits that J.V.s evidence was
    incapable of establishing the other essential elements: that the driver was
    following her intentionally, that he was aware of, or reckless to, the fact
    that she felt harassed, and that her fear was reasonable. The appellant submits
    that the conviction should be vacated, and that he is entitled to an acquittal
    on the charge respecting the J.V. incident.

[44]

The Crown contends that the failure of the trial
    judge to explicitly address in his reasons all of the elements of the offence
    related to the J.V. incident can be explained by the fact that the primary
    issue was identity and that the other elements of criminal harassment in
    relation to J.V. were not live issues at trial. Indeed, defence counsel did not
    make the argument at first instance that is made on appeal, that the other
    elements of the offence were not made out. The Crown asserts that the evidence
    clearly supports the appellants conviction on this charge.

[45]

I agree with the Crowns submissions. On a fair
    reading of the record and the reasons for judgment, the key issue in relation
    to the J.V. charge was identification. While the appellant was successful in having
    the charge of criminal harassment in relation to the T.L. incident dismissed because
    there was no evidence of repeated communication or that she feared for her
    safety, no such application was brought in respect of the J.V. incident. Nor did
    defence counsel offer any reply to the Crowns submissions on how the elements
    of the criminal harassment offence were satisfied in relation to the T.C. and
    J.V. incidents.

[46]

Considering the evidence as a whole, the test
    for an unreasonable verdict is not met. The evidence supports all of the
    elements of the offence of criminal harassment in respect of the J.V. incident.
    J.V. saw the man on five occasions, and she concluded that he was following
    her. She testified that she did not feel safe, so she screamed at the driver to
    fuck off and she called her sister. It was reasonable to infer from J.V.s
    evidence alone that the man was intentionally following J.V. and knew, or was
    reckless or willfully blind to the fact, that she felt harassed. As the Crown
    emphasized at trial, the fear was reasonable for a 16-year-old who was
    approached by a much older man in a vehicle. There was also the similar fact
    evidence in relation to T.C., E.S. and A.L. which supported the inference that
    the appellant was intentionally following J.V., as it was part of a distinctive
    pattern, and that, based on the reactions of the other complainants, he would
    have understood that his behaviour was unwanted. By the time the appellant was
    following J.V., he had witnessed the reactions of several other women and would
    have known that J.V. would feel harassed by his behaviour.

[47]

Accordingly, I would not give effect to
    this ground of appeal.

F.

ISSUE THREE: DID THE TRIAL JUDGE IMPROPERLY USE HIS FINDING THAT THE
    APPELLANT WAS WILLING TO FABRICATE EVIDENCE AS POSITIVE EVIDENCE OF GUILT?

[48]

The appellant defended the charges by denying
    his involvement in the offences and by providing a partial alibi. The trial
    judge rejected the appellants evidence and found that his credibility was
    damaged by his denial that he cut his hair and stopped wearing his baseball cap
    after the community became aware of the offences. He went on to say: This is
    arguably a more ancillary issue, but the court finds [such denials] to be
    indicative of his willingness to fabricate evidence favourable to himself.

[49]

The appellant contends that, while the trial
    judge stated that the post-offence conduct was arguably a more ancillary
    issue, he used the rejection of the appellants evidence as the basis for
    drawing a general adverse credibility finding against him. The appellant
    submits that the trial judge relied on his rejection of the appellants
    evidence as independent evidence that the appellant was guilty in the absence
    of any independent evidence to support a finding of fabrication or concoction.

[50]

The
    Crown asserts that the trial judge did not use his view of the appellants
    willingness to lie and his findings that he had lied to add to the strength of
    the Crowns case against him, and instead, used them only to reject the
    appellants evidence and to explain why it did not leave him with a reasonable
    doubt.

[51]

There is no dispute about the relevant principles. An accused
    persons fabrication or concoction is a type of after-the-fact conduct that can
    be used as circumstantial evidence of guilt, only where there is independent
    evidence of fabrication. It is an error for a trial judge to use his disbelief
    in the evidence of an accused to infer concoction, and then to use the finding
    of concoction as evidence of guilt: see
R. v. Coutts
(1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras. 13-18, leave to
    appeal refused, [1998] S.C.C.A. No. 450;
R. v. Bradey
, 2015 ONCA 738, 127
    O.R. (3d) 721, at paras. 166-174.

[52]

The appellant argues that in finding that the appellant had
    fabricated his evidence, the trial judge went beyond merely rejecting his
    evidence on that point, effectively concluding that the appellants testimony
    denying that he had stopped wearing his hat was evidence that he falsified
    evidence in order to mislead the court.

[53]

I see no such error here.
The trial judges
    reasons, read as a whole, show that, while he referred to the appellants
    willingness to fabricate evidence favourable to him, he did not use this
    finding as evidence of after-the-fact conduct indicative of guilt or as
    positive evidence for the Crown. The reference was made in the context of his
    explanation as to why he rejected the appellants denials and partial alibi
    evidence and after he had already made his findings on credibility.

[54]

I also disagree with the appellants submission
    that the trial judges finding that the appellant fabricated evidence permeated
    his assessment of the rest of the defence evidence, such that he extended the
    inference of fabrication to the evidence of the appellants fiancées daughter
    in order to reject her evidence. In addressing the evidence of the appellants
    fiancées daughter, the trial judge indicated that he was not critical of her
    credibility, but he had grave reservations about its reliability  that she was
    able to remember conveniently when she got up every morning during a period when
    she was not attending school, yet she could provide no details or was uncertain
    about what happened once she got up. Although he commented that she was no
    doubt, doing her best to assist her stepfather, the trial judge did not reject
    her evidence simply because he disbelieved the evidence of the appellant. In
    any event, the trial judge stated specifically that he would have had no doubt
    that about the appellants guilt even if he had accepted her evidence.

G.

CONCLUSION AND DISPOSITION

[55]

For these reasons I would dismiss the appeal.

Released: February 5, 2021 (K.M.v.R.)

K.
    van Rensburg J.A.

I agree. M.L. Benotto J.A.

I agree. Thorburn J.A.


