Court of Appeal for Ontario
Date: 2018-12-27 Docket: C63279
Judges: MacPherson, Pardu and Brown JJ.A.
Between
Her Majesty the Queen Respondent
and
Nicholas Dillon Appellant
Counsel
Breana Vandebeek and Mark Halfyard, for the appellant
Caitlin Sharawy, for the respondent
Heard: December 21, 2018
On appeal from: the conviction entered on October 26, 2016 by Justice Drew S. Gunsolus of the Superior Court of Justice.
Reasons for Decision
[1] The appellant was convicted by Gunsolus J. of the Superior Court of Justice of pointing a firearm, possession of a firearm contrary to prohibition, possession of a firearm knowingly unauthorized, and operating a motor vehicle disqualified. He received a global sentence of nine months' incarceration (after credit for pre-trial custody) and three years' probation. He appeals the convictions.
[2] There was a great deal of animosity between Ian Anthony and the appellant. Anthony and the appellant grew up as childhood friends in Bewdley. Anthony described his relationship with the appellant as initially "like brothers". However, the relationship ruptured several years before the trial when the appellant had a one-night stand with Smith during a break-up between Smith and Anthony.
[3] The appellant and Anthony never reconciled. Over the years, there were many verbal altercations and at least one physical incident that led to a conviction and jail time for the appellant.
[4] On the evening of February 16, 2016 at approximately 7:40 p.m., the complainants, in their car, and the appellant, in his pick-up truck, met on the side of a road near Bewdley. Both complainants testified that after a heated verbal exchange between Anthony and the appellant, the appellant pointed a sawed-off shotgun at Anthony. Anthony testified that the appellant said that if Anthony followed him home, the appellant would shoot or kill him.
[5] The appellant drove away. The complainants followed him to his home and then called 911. They met the police by a gas station on the outskirts of town.
[6] The next day the police arrested the appellant and conducted a search of his home. They did not find a firearm.
[7] The appellant did not testify at trial.
[8] The trial judge accepted some aspects of the complainants' evidence and rejected others. He found that Smith was an "opinionated, sarcastic, argumentative witness", but was "blunt", "truthful" and "unequivocal in her evidence on the important and salient facts". He noted that her evidence at trial was "not significantly at variance" from her statements to the police or her testimony at the preliminary inquiry, nor was it "significantly different from that of Ian Anthony". After considering all the evidence, the trial judge was satisfied that on the evening in question the appellant possessed a firearm and pointed it at Anthony.
[9] The appellant appeals on four grounds.
First Ground of Appeal: Inadequate Consideration of Inconsistencies
[10] First, the appellant contends that the trial judge failed to adequately consider, and give proper effect to, material problems and inconsistencies in the complainants' evidence.
[11] We do not accept this submission. The trial judge acknowledged inconsistencies between the complainants' descriptions of relevant factors, including whether the shotgun was single or double-barrelled and the colour of the appellant's clothing. However, he concluded:
While [Ms. Smith's] evidence differed on non-essential facts, it did not contradict that of Ian Anthony. They both described a sawed-off shotgun, they both saw it across Dillon's lap, they both heard Dillon respond he was going to shoot Anthony, although as I said earlier, Ms. Smith said she did not really believe Dillon would actually do anything.
[12] In our view, the trial judge was entitled to reach this conclusion.
[13] A related component of this ground of appeal is the appellant's claim that, in considering the credibility of the complainants, he failed to treat them as Vetrovec witnesses. The appellant says that the animosity between the appellant and the complainants was palpable and that this should have led the trial judge to self-instruct and apply Vetrovec to these two witnesses.
[14] We disagree. The appellant's submission is a bridge too far. The long and complicated history between the appellant and the complainants does not mean that the complainants were "unsavoury" or "untrustworthy".
Second Ground of Appeal: Misapprehension of Evidence
[15] Second, the appellant asserts that the trial judge misapprehended the evidence relating to whether the meeting between the appellant was accidental or pre-arranged.
[16] We do not accept this submission. The trial judge did not misapprehend the complainants' evidence on this point; he rejected it. If anything, this inured to the benefit of the appellant.
Third Ground of Appeal: Reliance on Precedent
[17] Third, the appellant contends that the trial judge erred by relying on R. v. Richards and R. v. Charbonneau in support of his conclusion that the appellant possessed a firearm. The fact that an item looks like a firearm and is used in a manner consistent with a firearm does not mean that it is a firearm. A crucial fact in this case is that the police did not find a firearm at the appellant's home when they searched it the day after the incident.
[18] We disagree. The trial judge's analysis on this issue, concentrating on the complainants' description of the item in question and the appellant's conduct and words (he would shoot Anthony) while holding it, was entirely consistent with the test set out in Richards at para. 4 and Charbonneau at para. 3.
Fourth Ground of Appeal: Unreasonableness of Verdict
[19] Fourth, the appellant submits that the trial judge's verdict was unreasonable.
[20] We disagree. The appellant candidly admits that this is not a stand-alone ground of appeal, it can succeed only if one of the other grounds of appeal is accepted. Accordingly, in light of our conclusions on the other grounds of appeal, this issue does not arise.
Decision
[21] The appeal is dismissed.
J.C. MacPherson J.A.
G. Pardu J.A.
David Brown J.A.