COURT OF APPEAL FOR ONTARIO
Roberts, Miller and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nicholas Place
Appellant
Nicholas Place, acting in person
Richard Litkowski, appearing as duty counsel
Hannah Freeman, for the respondent
Heard: August 12, 2020 by videoconference
On appeal from the convictions entered on December 7, 2018 and the sentence imposed on March 4, 2019 by Justice Diane M. Lahaie of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant was convicted of the offences of break and enter into a dwelling house, wearing a disguise with the intent to commit an indictable offence, mischief, assault, uttering threats to cause death, and breach of a probation order. He was given a global custodial sentence of 3 years and 45 days, which reflected credit for 4.5 months for pre-sentence custody. Among the ancillary orders, the trial judge made a restitution order requiring the appellant to immediately pay the amount of $810.93 to the complainant, Daniel McLaughlin. The appellant appeals his convictions and sentence.
Brief Factual Background
2Following the end of his romantic relationship with Jada1, with whom he parents a daughter, the appellant began to send numerous Facebook messages to Daniel McLaughlin, the domestic partner of Jada’s best friend, Brooklyn Saunders. The appellant sent the messages under the alias, Nicholas Redd. In these messages, the appellant expressed his frustration, anger and jealousy concerning Jada. He accused Daniel McLaughlin, or other men known to Daniel, of being in a romantic relationship with her. The messages were threatening. As the trial judge found, “[The appellant] was obsessively pursuing [Daniel] McLaughlin, communicating as time progressed that he was closer to finding him and that there would be a confrontation”. Daniel McLaughlin attempted to placate the appellant, but he ultimately blocked him from sending further messages on Facebook the day before the appellant’s offences.
3Learning of the appellant’s messages to his brother, Alex McLaughlin wrote to the appellant through the appellant’s other alias, Nick Laushway, threatening to “smash [the appellant’s] teeth down [his] throat”. The appellant and Alex McLaughlin engaged in a series of mutually aggressive Facebook messages ending with the appellant writing to Daniel McLaughlin that he could come to Alex McLaughlin’s home for a confrontation. Alex McLaughlin blocked the appellant on Facebook two days before the appellant’s offences.
4On September 22, 2017, while Daniel McLaughlin, his brothers, Alex and Jeffrey, and Ms. Saunders were in the kitchen at Daniel McLaughlin’s house, they noticed a car twice drive slowly by the house. Within approximately two minutes, the appellant kicked in the front door and entered the house. His face was covered with a bandana. He threw kitchen chairs and yelled at Daniel McLaughlin. Immediately, Daniel McLaughlin yelled out the appellant’s name. The two tussled and the appellant was brought to the ground by the McLaughlins. In the struggle, the appellant’s bandana slipped off. While on the telephone with the 911 operator, Ms. Saunders saw and recognized the appellant’s face. She testified that she also recognized his voice when he first entered the house and yelled at Daniel McLaughlin. The appellant threatened to have his friends come in with guns and “shoot up the house” if they did not release him. Frightened, they did, and he ran out of the house. They watched him enter the same car that had driven twice by the house, which then drove away.
5The main issue at trial was identity. The trial judge was satisfied that it was the appellant who sent the Facebook messages under the two aliases to the McLaughlin brothers, broke into Daniel McLaughlin’s house, and committed the other offences.
Issues
6The appellant puts forward the following arguments on appeal.
7He submits the trial judge made the following errors resulting in an unfair trial and unreasonable verdicts:
i. The trial judge erred in her treatment of Ms. Saunders’ recognition evidence.
ii. The trial judge erred in disregarding Ms. Saunders’ cross-examination to the extent it contradicted her evidence-in-chief.
8The appellant raises the following issues with respect to his sentence:
i. The trial judge erred in failing to give any enhanced credit for his restrictive bail conditions.
ii. The trial judge erred in failing to give him any time to pay the restitution order.
Analysis
Conviction Appeal
9We see no basis to overturn the appellant’s convictions.
10Starting with the identification and recognition evidence issue, the trial judge was aware of the inherent frailties and dangers of eyewitness identification evidence. She reviewed the evidence of all the eyewitnesses with caution and rejected as unreliable the in-dock identification of the appellant made by Jeffrey McLaughlin and Alex McLaughlin. She did not accept all the evidence given by the McLaughlin brothers. She subjected Ms. Saunders’ evidence to careful scrutiny and did not accept her identification of the appellant simply because she “recognized” him. Rather, the trial judge was satisfied of the reliability of Ms. Saunders’ identification of the appellant on the basis of all her evidence, including that she had an excellent and clear opportunity to see the appellant while he was on the ground without his bandana and she provided a very detailed description of what she saw.
11Most importantly, the trial judge’s conclusion that the appellant was the person who committed the offences did not depend solely on Ms. Saunders’ identification or recognition evidence but on the whole of the evidence, including: the appellant’s authorship and the threatening content of the Facebook messages that he sent to the McLaughlin brothers; and the timing of his appearance at Daniel McLaughlin’s house and the end of the Facebook Messenger exchange caused by the McLaughlin brothers blocking the appellant’s messages a day or so before the incident.
12We next turn to consider the trial judge’s treatment of Ms. Saunders’ cross‑examination. The appellant submits that the trial judge erred in summarily dismissing the inconsistencies between Ms. Saunders’ direct examination and cross-examination. He argues that this dismissal materially undermined the reliability of the trial judge’s identification of the appellant.
13We are not persuaded by this submission.
14The trial judge stated in her reasons that she placed no weight on any of Ms. Saunders’ evidence in cross-examination where it differed from her examination-in-chief. She determined that it was unreliable because Ms. Saunders was very upset during her cross-examination as the result of the recent death of her sister and “was simply agreeing with any suggestion put to her by a very skilled and assertive defence counsel” in order to be able to leave.
15While it would have been preferable if the trial judge had specifically reviewed all the inconsistencies in issue and explained why they did not affect her assessment of the credibility and reliability of Ms. Saunders’ evidence-in-chief, it is clear from her reasons that she did not make this determination on the basis of Ms. Saunders’ demeanour alone. When read as a whole, the trial judge’s reasons, as supported by the record, set out a cogent basis for her acceptance of Ms. Saunders’ identification of the appellant.
16Moreover, we do not see the alleged inconsistencies as material. For example, the fact that Ms. Saunders was ultimately prepared to concede that the appellant’s hair as it appeared in the courtroom was more brown than “reddish” is of no moment given her otherwise detailed description of the appellant at the time of the offences over a year earlier and the little weight that the trial judge correctly, in our view, gave to in-dock identification. Again, the trial judge’s conclusion that the appellant committed the offences was not solely based on Ms. Saunders’ description but on all the trial evidence, including the evidence of the other witnesses and, more significantly, on the Facebook messages that preceded and foreshadowed the appellant’s arrival and actions at Daniel McLaughlin’s house.
17Accordingly, the appeal from the convictions is dismissed.
Sentence Appeal
18The appellant submits that the trial judge erred in failing to give enhanced credit on sentencing for what she determined were “restrictive house arrest conditions for some time” from the beginning of October 2017 to December 2018.
19The trial judge determined that the appellant’s restrictive house arrest conditions were “the result of [the appellant’s] criminal history” and that it was not appropriate to grant any credit for the time spent on restrictive bail conditions given his criminal history. She concluded that “the restrictive bail conditions were appropriate in all of the circumstances and that [the appellant] should not be given credit for the time [he] spent out of custody and subject to those conditions.”
20As this Court stated in R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 33, it is an “error in principle” for a trial judge to fail to take into account as a mitigating circumstance in sentencing time spent under stringent bail conditions, especially house arrest. See also: R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 67. The determination of enhanced credit is not the product of a formula but is within the discretion of the trial judge. In para. 37 of Downes, the Court set out a non-exhaustive list of criteria to be considered in determining this issue, including: the amount of time spent on pre-sentence bail conditions; the stringency of the conditions; the impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment and activity. The onus is on the offender to establish the facts supporting the impact of the conditions on a balance of probabilities in accordance with s. 724(3) of the Criminal Code, R.S.C. 1985, c. C-46.
21We see no error that would warrant appellate intervention. The trial judge did take into account the appellant’s stringent bail conditions and determined that no enhanced credit should be given for those conditions in all of the circumstances. While the appropriateness of the appellant’s bail conditions was not a relevant consideration, it is clear that the trial judge did not limit her determination to that criterion but reviewed all of the circumstances. The question of how much enhanced credit for strict bail conditions, if any, should be granted was firmly within the exercise of the trial judge’s discretion. There is no error in the exercise of her discretion.
22Finally, we turn to the trial judge’s decision not to grant the appellant any time to pay the restitution order to Daniel McLaughlin. While we see no error in the exercise of the trial judge’s discretion, the Crown has consented to an extension of time for the payment of the restitution order. Accordingly, the appellant shall have one year from his release from custody to pay the amount of $810.93 in restitution to Daniel McLaughlin.
23The sentence appeal is otherwise dismissed.
Disposition
24The appeal from conviction is dismissed.
25The appeal from sentence is allowed with the consent of the Crown, to permit the appellant one year from his release from custody to pay the restitution order in the amount of $810.93 to Daniel McLaughlin.
26The appeal from sentence is otherwise dismissed.
“L.B. Roberts J.A.”
“B.W. Miller J.A.”
“Gary Trotter J.A.”
