



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C.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    the victim shall not be published in any document or broadcast or transmitted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. Braithwaite, 2020 ONCA 513

DATE: 20200817

DOCKET: C68174

Roberts, Miller and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Scott Braithwaite

Appellant

Scott Braithwaite, acting in person

David Parry, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: August 11, 2020 by video conference

On appeal from the convictions entered
    on August 26, 2019 by Justice Richard LeDressay of the Ontario Court of
    Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted of breaking and
    entering, voyeurism, and criminal harassment of the complainant, with whom he
    had an intimate relationship. The complainant ended the relationship after two
    years and the appellant did not take the breakup well. The appellant sent the
    complainant so many emails and text messages that in November 2016, the
    complainant went to the police to complain about the unwanted contact.
    Thereafter, she began to receive emails and text messages from unknown
    addresses that she believed originated from the appellant.

[2]

Around this time, in November 2016, the
    complainant discovered that the passwords to both her Apple ID and her Facebook
    page had been changed. She also received a notification that her Apple ID had
    been used to log on to a new device. She testified that in November and
    December, she noted many times on returning home that her garage light was on
    or her door was not locked. Additionally, someone set up fake (and derogatory)
    dating profiles in the complainants name on a dating website. Derogatory email
    and text messages about the complainant were sent to her employer. In January
    2017, the principal of the complainants childrens school was sent photos of
    the complainant, along with allegations of misbehaviour on her part.

[3]

On December 28, the complainant awoke to find
    her cell phone on the floor, rather than the bedside table where she had left
    it. The passcode had been changed. She found her front door unlocked and a key
    left on a table. She concluded that someone had been in her home while she was
    asleep.

[4]

Two days later, she noticed a Ring camera on the
    floor in her bedroom, pointed at her bed.

[5]

The police arrested the appellant and searched
    his cell phone incidental to arrest. A forensic search of the cell phone and
    his computer revealed several images that almost certainly originated from
    within the complainants residence. Some of the images were of documents kept
    in the complainants wallet, such as credit cards and a business card she
    received from the Halton Regional Police Service after making a complaint about
    the appellant. One image was of the complainants cordless phone, apparently
    displaying a call incoming at 12:01 A.M. on November 22. The time displayed on
    the phone matches the time and date of the image of the phone found on the
    appellants cell phone.

[6]

The cell phone and computer extractions also
    revealed nude photographs of the complainant taken in her bedroom. Both the
    angle of the photographs and the Ring watermark suggest they were taken from
    the Ring camera the complainant discovered on her bedroom floor. The
    complainant testified that she had never shared nude photos of herself with the
    appellant.

[7]

The extraction report also showed that on
    December 28, 2016  the day which the complainant claimed someone had entered
    her residence and changed the passcode on her cell phone  the appellants cell
    phone received a notification that the complainants cell phone was now sharing
    its location with the appellant.

[8]

Also located on the appellants cell phone were
    notes that the appellant had written recording his feelings about the
    complainant and the break-up, complaining of her treatment of him and wondering
    is this some kind of sick game? Are you okay? Who treats people like this, who
    can me (sic) so morally corrupt and still not think theyve done anything
    wrong??

[9]

The appellant was convicted of criminal
    harassment, voyeurism for a sexual purpose, and two counts of break and enter.
    He was sentenced to 12 months custody less 6 months credit for pre-sentence
    custody and time spent on restrictive bail.

Analysis

[10]

The appellant advances three grounds of appeal
    against conviction: (1) the trial judge erred in finding that the appellant had
    animus towards the complainant, and this animus supported a finding that the
    appellant was the person who committed the acts of criminal harassment; (2) the
    trial judge failed to make a finding that the complainant was fearful of the
    appellant, which is a necessary element of criminal harassment; and (3) the
    trial judge erred by convicting the appellant on circumstantial evidence when
    the evidence was open to reasonable inferences other than the appellants guilt:
R. v. Villaroman
, 2016 SCC 33, at para. 35.

[11]

With respect to the argument concerning animus, there
    is ample evidence from which the trial judge was able to draw the inference
    that the appellant had animus towards the complainant. In particular, the notes
    that were recovered from his devices did not simply record his sorrow and
    self-pity. Some, at least, were directed at the complainant and were accusatory
    in nature, suggesting not only that he was a victim of her unjust treatment,
    but that she was both morally and psychologically disordered.

[12]

With respect to the second ground of appeal, it
    is true that the trial judge did not make an explicit finding that the
    complainant was fearful of the appellant. She may not have been fearful during
    the initial period in which the appellant was continually messaging her.
    However, the record clearly establishes that she was fearful after discovering
    the Ring camera. The words she used to describe her reaction were shocked,
    petrified, anxious, upset, and violated. This was before she learned of
    the nude photographs of herself on the appellants devices.

[13]

Finally, the appellant argued that as the
    evidence was circumstantial in nature, and there were other explanations for
    the evidence equally consistent with the guilt of the appellant, he ought to
    have been acquitted. In his oral submissions, he pressed that it was much more
    likely that the complainant had fabricated the evidence  including the
    apparently surreptitious nude photographs in the bedroom  that was downloaded
    to his devices without his knowledge.

[14]

We do not agree that the trial judge made any
    error. The circumstantial evidence against the appellant was overwhelming. Neither
    was there an evidentiary gap that could have left the trial judge with a
    reasonable doubt. In these circumstances, it was open to the trial judge to
    conclude that the only reasonable inference available was the appellants
    guilt.

[15]

The appellants strongest argument on the
    evidence is that some of the images found on his devices pre-date the two
    specific dates of the two counts of break and enter for which he was convicted.
    There is nothing to this. The information covers a period of time from October
    1, 2016 for the voyeurism offences, and November 2, 2016 for other offences.
    They are not tied to the dates particularized for the two counts of breaking
    and entering. The two counts of breaking and entering do not preclude the
    drawing of the inference that the appellant had been unlawfully present in the
    complainants residence on other occasions, which inference is also supported
    by the evidence at trial.

DISPOSITION

[16]

The appeal is dismissed.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.

Gary
    Trotter J.A.


