WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2024 01 21 Court File No.: Brampton 19 6631 and 19 6745
BETWEEN:
HIS MAJESTY THE KING
— AND —
NATHANIEL DILLON
Before: Justice G.P. Renwick
Heard on: 13-14 September 2021 and 18 January 2024 Reasons for Judgment released on: 21 January 2024
Counsel: D. Noonan, B. Jackson..................................................................... counsel for the Crown M. Luft............................................................. counsel for the Defendant Nathaniel Dillon
RENWICK J.:
INTRODUCTION
1The Defendant was charged on separate Informations with breaching a no-attend term of bail on two different days. There was a criminal harassment charge on the second Information, but during the trial I granted a directed verdict of acquittal on that charge.
2The prosecution proceeded summarily and the parties agreed to try both charges together. This was a brief trial, but for several reasons took place over an extended period of time. The complainant testified as did the Defendant. Several exhibits were filed.
3It appears to be uncontested between the parties that there was a chance encounter between the complainant and the Defendant on 03 and 08 April 2019. At that time, the Defendant was bound by a recognizance of bail that included the following:
Do not attend any place where you know [the complainant] to live, work, go to school, frequent or any place you know [the complainant] to be EXCEPT for required court appearances.
4At the heart of it, I must determine whether the prosecution has proven the allegations beyond a reasonable doubt. This will entail a consideration of credibility and reliability, and whether the prosecution’s high burden is met.
GOVERNING LEGAL PRINCIPLES
5The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the alleged offence beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant remained at a place where he knew the complainant to be, he will be acquitted of the charge.
6A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during a trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence and I am not left with any reasonable doubt, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or some reasonable doubt remains, then the charge has not been proven to the required degree and an acquittal must follow.
7This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify and communicate their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.
8A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are significant or inconsequential to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.
9Given the Defendant’s evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31.
10Justice Paciocco breaks down the W.(D.) principles into five propositions:
(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;
(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict him;
(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;
(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.
11Also, I have reminded myself to treat the evidence of both witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of a witness’ role or status, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.
12In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, motive, and the witness’ ability to recall and communicate.
13I will not recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes and to review transcripts or to listen to parts of the digital recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made, and my review of the evidence was complete.
THE EVIDENCE
The Testimony of the Complainant
14Overall, I find that the complainant was very believable. She presented as an articulate, thoughtful, and careful witness who endeavoured to listen to the questions, make reasonable concessions, and assist the parties and the court to understand her evidence.
15The complainant described having attended a bar/restaurant at Square One mall in Mississauga known as “Earl’s” on 03 April 2019. As will become clear, much of her testimony was not contradicted by the evidence of the Defendant.
16The complainant testified that she was drinking at the bar with a friend. After some time, she happened to look over and observed the Defendant, who was bound by a bail order not to be in her presence, some two seats away, also at the bar. When she noticed him, the Defendant was looking right at her and he was smiling. The complainant testified that she was in shock. After momentarily composing herself, she told the Defendant that he should leave because he was not supposed to be anywhere near her. She admitted in cross-examination that she used profanities and she raised her voice to gain the attention of the bar staff, given her concerns for her safety. The Defendant denied having any idea who she was or what she was referring to. As a consequence, she determined it was best if she vacated the premises. She paid for her drinks and she left. The complainant testified that within a short period of time, while she was still at the mall, she composed herself and called the police, using the non-emergency phone line. Given the date of her statement to the police, it is obvious that she did not attend to the police station the same day of the incident to give her full statement to the police.
17Some five days later, on 08 April 2019, the complainant was at the YMCA close to Square One mall. As she left the women’s change room to begin her workout, she happened to see the Defendant at the basketball courts, who also seemed to notice her at the exact same time. Again, this seemed coincidental. The complainant continued up to the second level where she met up with her friend to workout. After a few minutes while taking some time to decide what to do, she then saw the Defendant running around the track encircling the workout area. The Defendant and complainant locked eyes. This happened at least twice. She then called the police using 9-1-1 from the changeroom and awaited about an hour for police to arrive to investigate and walk her to her car.
18Cross-examination attempted to undermine the complainant’s credibility and reliability. Small, apparent inconsistencies were questioned. In light of the Defendant’s testimony, which did not contradict the complainant’s evidence respecting where and how the incidents took place, these attacks failed in all respects. To the contrary, for several reasons, cross-examination bolstered the view that the complainant was being truthful when she testified.
19First, the complainant was agreeable and made reasonable concessions while testifying (p. 59 of the transcript of her evidence given on 13 September 2021; pp. 4 and 24-25 of her evidence on 14 September 2021, for instance).
20Second, she testified that the meeting at the YMCA was “honestly, purely coincidental” as the Defendant turned to see her at the same moment she was walking out of the women’s change room (p.72 on 13 September 2021).
21Third, she denied any reason to think that the Defendant knew that she frequented Earl’s before their encounter on 03 April 2019 (p. 4 on 14 September 2021).
22Fourth, on both narratives, the complainant left Earl’s before the Defendant.
23Fifth, on both narratives, the encounter at the YMCA seemed to be purely coincidental.
24Sixth, the complainant admitted that she used profanities when addressing the Defendant at Earl’s.
25At one point in cross-examination, it was suggested that contrary to her testimony, the complainant had made several calls to the police to learn whether the Defendant had been investigated or arrested in relation to the Earl’s incident. A recording, apparently of a call to the police, was played in court. For some unknown reason, this recording was never identified, made an exhibit, or used to cross-examine the complainant.
26I find that there was no successful challenge to any of the complainant’s testimony during her cross-examination. The answers the complainant gave to perceived inconsistencies or apparent areas of concern were reasonable, accorded with the complainant’s other evidence, and removed any suspicion respecting the authenticity of her testimony.
27As a result, I believed the complainant’s evidence.
The Testimony of the Defendant
28The Defendant was not particularly believable. His testimony had a performative aspect. During his cross-examination, the Defendant became flippant and he referred to the prosecutor several times as “buddy.” On two occasions, for no apparent reason, the Defendant began to speak in another language. When asked about it on one of the occasions, the Defendant said that he was quoting something from the Qu’ran to “denounce Satan.” Obviously, the Defendant’s testimony was somewhat impertinent.
29The Defendant testified that he did not notice the complainant when he entered Earl’s and it was not until she raised her voice and approached him that he became aware of her presence. He said that the complainant was loud, she gave him the middle finger, and she used racist language (referring to his race, by calling him “N-word” [2]) several times. He was embarrassed and just wanted to pay for the take-out food he had ordered and leave. He testified that she eventually left before he had paid, which ended the matter.
30On the second occasion, the Defendant described being at the YMCA for a full day of activities: Pilates, yoga, strength-training, basketball, and volleyball (the latter activity did not take place because of the incident). He had been going to the YMCA daily for two years, while paying daily for a day pass, and he hoped for employment with youth groups.
31On the day of the incident, the Defendant made a point to say that he had finished his running (presumably on the track upstairs, where the complainant testified that he ran past her twice while staring at her) and then he had finished playing a basketball game and was leaving the court when he saw the complainant. He testified in chief as follows:
Q: Mr. Dillon.
A: Sir.
Q: When you saw [R.], or Ms. [M.], sorry, ah, what were you, ah, what did you think? Do you remember what your thoughts were?
A: No sir. Ah, gra, grab my bag, get my stuff. Again, [laughing ] hit the showers . I don’t, I don’t really have the time for the memory or the friendship or discussions. Not even a few days later, not a minute, not a second. With or without [an] Order. It’s all in respect to the Order that had been released.
Q: Right.
A: You understand? Because they want to be able to move forward. To make it easier for your own life, it’s best to not have contact. Where they asked you to sign a paper, to not do so, in order to proceed with your life. Please, abide by it and not make contact. Get my stuff, go home. That’s all.
32As the answers above reveal, the Defendant was not always direct, nor responsive, even during his evidence in chief. In cross-examination, it became more difficult to understand some of the Defendant’s evidence.
33For example, there seemed to be a shift in the testimony about whether the Defendant had already paid for his food, or was waiting to pay, when the complainant confronted him about his presence. The Defendant began to answer the cross-examination in a very circuitous way in respect of the timing of things. At one point, he began to re-enact his approach at the bar to demonstrate the timing. His movements, the content of his testimony, and his manner of testifying became exaggerated and unnatural.
34In the end, on the basis of his answers, the non-sequiturs introduced by him, and the manner of responding to what was being asked, I did not believe much of what the Defendant said while testifying.
ANALYSIS OF THE EVIDENCE
35Triers of fact must consider both credibility and reliability in determining whether the allegations are proven beyond a reasonable doubt. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which we evaluate the accuracy of evidence.
36It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns rule the analysis because credibility does not guarantee accuracy.
37While credibility is not a proxy for reliability, [3] where the evidence is highly credible, consistent, plausible, not inconsistent with other evidence, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, accuracy is likely established.
38Did the complainant have a motive to fabricate her evidence? In this case, although this was never raised directly by the parties, this was a live issue. The complainant had made 18 historical allegations against the Defendant that had yet to come to court.
39Despite some concern that the complainant may have had a motive to fabricate, I find that this evaporated for the following reasons:
i. In respect of the Earl’s incident, the parties both accept the Defendant’s presence at the bar where the complainant had been sitting and his failure to immediately leave upon gaining this awareness; there was very little about the allegation that could turn on motive, given that they disagreed only about whether Earl’s was inside or outside of the mall and whether she had used racial language; [4]
ii. Motive had nothing to do with my rejection of the Defendant’s testimony: I reject the Defendant’s evidence that he immediately left the YMCA upon seeing the complainant downstairs while exiting the basketball courts; I accept the complainant’s evidence that he began to run around the track and stared at her each time he passed by; the Defendant’s evidence in chief referenced having gone running that day, he twice mentioned the location of his locker room when describing his first sighting of the complainant, and as his testimony concluded, for no apparent reason he mentioned the lines of the running track;
iii. Contrary to any apparent motive to fabricate, the complainant was not in a hurry to call the police on 08 April 2019, even though this was the second time she had seen the Defendant in several days. In her mind, she was uncertain whether the police had spoken to the Defendant after the encounter at Earl’s (pp 58, 67-68, and 74 of 13 September 2021);
and most importantly,
iv. During each encounter, the complainant testified that she wanted to give the Defendant the opportunity to do the right thing and comply with his bail terms; I accepted this evidence as truthful and took it to mean that she did not want to immediately call the police to investigate either allegation.
40In the end, I accept as believable and accurate what the complainant said about the Defendant eventually following her up the stairs at the YMCA to the area where she began to workout. I accept as truthful and accurate her narrative of the Defendant’s behaviour (running the track around the complainant several times while staring directly at her) following the initial sighting outside the basketball courts. I completely reject the Defendant’s testimony that he was compelled to get his stuff from his locker, because of a fear that his belongings would be removed or stolen. I find that the Defendant went to great lengths to discuss why he had to go upstairs and get his things before simply leaving the YMCA. There was no contest in the evidence that the men’s changeroom was upstairs. The complainant confirmed that the Defendant would have had to go upstairs to leave the building. I find that the Defendant’s evidence on this point was fabricated to possibly explain his presence upstairs, but it was completely unresponsive to the allegation that he ran laps around the complainant while staring at her.
41In respect of the Defendant’s testimony, I had significant concerns about his reliability as a witness. [5] His testimony was unresponsive, artificially detailed, and somewhat evolving in equal measure.
42What, if any, weight should a trial judge give to the presentation of the witnesses during their testimony? Many courts have cautioned triers of fact of the dangers of credibility assessments which rely too heavily upon the demeanour of a witness:
It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness. [6]
43Despite the dangers, triers of fact are not prohibited from reliance upon the manner of a witness’ presentation:
It is a settled axiom of appellate review that deference should be shown to the trier of fact on issues of credibility because trial judges have the “overwhelming advantage” of seeing and hearing from witnesses. [7]
This advantage comes from the ability to assess the demeanour of the witness, including observations of how the witness actually testified and especially how he or she responded to various parts of the cross-examination.
44Apart from the content of his testimony, when I consider the Defendant’s appearance during his cross-examination, his exaggerated behaviour, non-responsive/rambling answers, and his flippant manner, I find that his demeanor supports the view that he was caught being untruthful during part of his testimony and he became frustrated by cross-examination. This is not significant in terms of assessing the reliability of the Defendant’s evidence, but it was noticeable. This, and the testimony itself, undermined the denials of wrong-doing and his claims that he did what he could in each instance to respect the terms of his release.
45In the end, I find that the Defendant was untruthful about the events at issue.
46I have also assessed whether the evidence as a whole leaves me with a reasonable doubt about the allegations. I find that the evidence does not leave me with a reasonable doubt in any respects. The Defendant’s denials were somewhat basic and his evidence, while possible, lacked plausibility in light of the extraneous detail, the indirect manner of testimony, and his apparent lack of sincerity as a whole. As a result, none of the evidence has left me in a state of reasonable doubt in respect of the allegations.
47In the end, after a careful and reasoned analysis, I accept as true and accurate the testimony of the complainant that the Defendant found her twice and remained in her presence beyond a momentary recognition and awareness that a term of his release order was being breached. I find that the Defendant smiled at the complainant at Earl’s and he failed to leave when it was obvious that he must. He defiantly remained there despite the complainant’s reminder that he must leave. Instead, he waited for her to leave. The Defendant also remained at the YMCA after a second, chance encounter and eventually followed the complainant upstairs, perhaps emboldened by the lack of any police response to the earlier incident, where he stared at her several times while running by her as she exercised.
48On the basis of my acceptance of the testimony of the complainant and my complete rejection of the Defendant’s evidence, I am satisfied beyond a reasonable doubt of the Defendant’s guilt in respect of the two single remaining counts on the Informations.
CONCLUSION
49For these reasons, Nathaniel Dillon is guilty of twice failing to comply with a term of a recognizance of bail.
Released: 21 January 2024 Justice G. Paul Renwick
[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [2] The Defendant testified that the complainant referred to him as a “N----r” more than once. I refuse to repeat this vulgar, racist word and prefer to use the phrase, “N-word” instead. [3] R. v. H.C., 2009 ONCA 56 at para. 41. [4] In fairness, this was NOT suggested to the complainant during her cross-examination. Accordingly, I gave this evidence no weight. I do not accept that the complainant said anything to the Defendant beyond what she admitted in her testimony. [5] The words of Justice Paciocco are worth noting: Still, it is useful to attempt to determine whether the problem is likely a credibility or reliability issue. This is because learning that a witness has intentionally lied about something is more likely to promote the rejection of their evidence as a whole, than a finding that the witness was mistaken in some of what they offered. “Doubt about Doubt,” supra, at p. 15. [6] R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 (C.A.), at para. 85. [7] R. v. N.S., 2012 SCC 72, [2012] S.C.J. No. 72, at para. 25.