ONTARIO COURT OF JUSTICE

DATE: 2021 02 09 COURT FILE No.: Kitchener 4411-998-19-5810-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DILLION HAMILTON-PALIMAKA

Before: Justice W. G. Rabley

Heard on: December 9, 2019, January 8, March 12, 2020, Jan 5, 2021 Reasons for Judgment released on: February 9, 2021

Counsel: S. Wollaston and V. Karadzic......................................................... counsel for the Crown T. Brock………………….…......…counsel for the accused Dillion Hamilton-Palimaka

RABLEY J.

[1] Samantha Wolff is the proud owner of a Yorkie named Lexi. Lexi has been in the Wolff home for about 11 years and is loved by all of the family members. On March 7th, 2019, the family left their home to attend at a funeral for Samantha’s grandmother. When they returned home, Samantha entered through the front door. Lexi was not at the door to meet her which was unusual. Samantha went searching for her dog and to her dismay, found Lexi shaking and obviously in pain. Lexi was injured. She had been brutally attacked and there was blood all over the house.

[2] There were signs of a struggle in the home and things were out of place suggesting that whomever attacked Lexi had pursued her in order to do so. The family noted that nothing was taken from the home and there were no signs of forced entry.

[3] The police were called and began an investigation. After doing so, they concluded that the only person who had the ability, access and motive to commit such a crime was Samantha’s boyfriend, Dillon Hamilton-Palimaka. As a result, he was charged with the offences of Break and Enter, Wounding an Animal and Causing Unnecessary Pain to an Animal.

[4] Mr. Hamilton-Palimaka pleaded not guilty to the offences. He testified and presented alibi evidence to support his defence. As a result, I caution myself regarding the principles set out by the Supreme Court of Canada in W.D. v. The Queen (1991), 63 C.C.C. (3d) 397 (S.C.C.) relative to both his evidence and that of his two brothers who provided the alibi evidence on his behalf.

CASE FOR THE CROWN

[5] This is a case based upon circumstantial evidence. In such cases, the facts are like pieces of a puzzle or links in a chain. The evidence for the Crown consists of testimony from members of the Wolff family as well as a neighbour Susan Lloyd. The Crown facts are not really in dispute and I would summarize my findings of fact as follows:

(a) Lexi is considered by all to be Samantha’s baby. She is a mixture of Yorkshire and Poodle. She is a small dog, weighing about 8 pounds and is about a foot high; (b) Lexi generally interacts well with people and is an affectionate dog; (c) Samantha began dating Dillon in November of 2017. He would regularly come over to the house and visit. At first, Lexi got along well with him, but after a few months the dog began shying away from Dillon; (d) As time progressed, the family noticed that Lexi was becoming more and more afraid and would not come near Dillon. They observed that when Lexi heard his voice or saw Dillon, she would peek at him and run away to Samantha’s parent’s bedroom, where she would often hide behind the toilet; (e) Samantha spoke to her vet about the unusual situation because she could not understand why her dog was acting so strangely with her boyfriend. It was suggested that Dillon bring treats for Lexi. According to Samantha, Dillon agreed to do so, but never followed through with this recommendation; (f) The Wolff family left for the funeral home and intended to arrive around 10:00 o’clock in the morning on March 7th, 2019. They were vigilant as a family about locking all doors to the house and always double checked to make sure that the home was secure. The family was confident that they did so on the day in question; (g) The funeral was scheduled for 11:00 o’clock and there was a pre-arranged lunch afterwards starting around 12:00 p.m.; (h) At the funeral, Dillon arrived late and explained that he was delayed because he had changed his shirt. Later that morning, he told Samantha that he was joining the Armed Forces and would be deployed to Meaford for training. This resulted in an argument between them and Dillon left the funeral home instead of going on to the cemetery with the Wolff family; (i) Dillon could not understand why Samantha did not want him to join the Armed Forces and why she was questioning their relationship as a result of this decision by him; (j) Susan Lloyd is a trusted neighbour of the Wolff family and their homes are beside one another. She has a key to access the Wolff home when they need someone to let Lexi out; (k) Mrs. Lloyd knew Dillon was Samantha’s boyfriend and she had seen his red truck parked out in front of their house on many occasions; (l) On the day of the funeral, Mrs. Lloyd believes that she finished work around 2 o’clock and passed by the red truck parked out in front of her house. She had often seen Dillon’s truck parked in that spot and so she thought nothing of it. She noted at the time, that he hadn’t taken in the garbage bins which were still out after the garbage had been collected and thought that was unusual; (m) Mrs. Lloyd described the truck as one with a long box. She was certain that it was Dillon’s truck; (n) At 4:30 in the afternoon, Samantha’s father John Wolff came by to see Mrs. Lloyd and ask her if she had seen any vehicles that day. In particular, he was interested to know whether she had seen a red truck. Mrs. Lloyd told him that she recalled having seen a red truck parked in front of the house sometime after 2:00 p.m.; (o) When the Wolff family returned home after the funeral, they observed that Lexi did not come to the door as usual. They found her in her bed. She was injured and whimpering; (p) There was blood all over Lexi’s face and leg. The family began to search the house. They soon found blood smeared on the kitchen floor and on the wall going down the stairs. It was at about 5 feet high off the ground. In her parent’s bedroom, Samantha found more blood in the bathroom behind the toilet and under the bed. At that time, Mr. Wolff was using a CPAP machine and hung the hose around the bedpost in between uses. When the family returned home, everything appeared to be ripped apart and the cords to the CPAP were under the bed and were unplugged. Samantha also observed what appeared to be claw marks in the carpet confirming to her that there had been a struggle. Lexi had an injury to her paw and one of her nails had been ripped out. In addition to that, she was missing a tooth; (q) There were no signs of forced entry and nothing was taken from the home; (r) The injuries to Lexi were not caused by accident; (s) It is agreed that neither Mrs. Lloyd nor her husband brutalized Lexi; and (t) Dillon was the only person other than the members of the Wolff family to have the code to the garage. He had used it approximately 10 to 15 times prior to March 7th, 2019.

[6] Samantha testified that in the summer of 2018, Dillon had used the code to enter the home when her parents were at their trailer and while she was returning late to home from Brantford. She got a call from Dillon explaining that Lexi was bleeding. He told her that all he had done was let Lexi out.

[7] When Samantha arrived home that day, she found Lexi hiding in the corner behind her food bowl. Her leg was bloody, and her nail had been ripped out of the paw. Neither Samantha, her family, nor their vet could figure out the cause of the injury and it remained unexplained.

[8] Samantha also recalled that in February 2019, Dillon had let her know that he had something to drop off for her and had asked when people were home so that he could coordinate leaving a Valentine’s gift for her. Samantha told him to leave it by the door. That day, Dillon had also texted Samantha’s mother Laura when she was at work, asking when she and her husband would be home. When the family got home, they discovered that Lexi had a paw injury and was limping. Somehow her nail had been completely pulled out. There was no explanation as to how this injury had occurred. When asked, Dillon told Samantha that he had changed his mind and didn’t attend at the residence that day as planned.

[9] All three incidents where Lexi suffered these unexplained injuries occurred during the three to four month period of time when Samantha was dating Dillon. According to the family, there had been no other incidents of injury to Lexi in the preceding 10 years.

[10] Samantha’s evidence was corroborated by her mother Sandy Wolff who explained that she believed Dillon was alone with Lexi on each of these occasions. Sandy also recalled that there was a fourth incident involving an unexplained injury to Lexi that Samantha had not remembered. It was also during the time frame when Samantha was dating Dillon.

[11] Text messages between boyfriend and girlfriend were tendered beginning on March 7th. Dillon texted Samantha at 1:50 p.m., but there were no further texts between them until she responded at 2:50 p.m. At that time, Samantha questioned Dillon and asked him if he had been at her home that day. He told her that he went straight home from the funeral but then offered that “i did however forget to give your mom the a card from my mom.”

CASE FOR THE DEFENCE

[12] Dillon denied that he caused the injuries to Lexi. He testified that he left the funeral early to give the family privacy during the burial and that he then went straight home. He then went out for a short period of time to buy some cigarettes before spending the balance of the day playing video games. Michel and Koby Palimaka were called by the Defence to testify about the afternoon. It was their evidence that they each had a clear recollection of the afternoon and could remember the precise times that their brother came and went that day.

[13] All three were cross-examined relative to a number of issues. While they steadfastly kept to their stories, there were several areas that I found questionable. I will discuss them in some detail.

DILLON HAMILTON-PALIMAKA

Leaving the Funeral Home Angry

[14] It was suggested to Dillon that he was angry because he had raised the contentious issue about joining the Armed Services with Samantha at her grandmother’s funeral and she was negative about it. He agreed that they had “just gotten into an argument” but suggested that he was “perfectly fine” because “she can get like that sometimes” and that she didn’t like the military.

[15] It became clear through the text message conversations between Samantha and Dillon that this was a very delicate subject and that she was quite upset about it. Samantha contradicted Dillon’s evidence that he was “perfectly fine”. She testified that “he became angry” when she didn’t want to discuss the subject and stormed off saying that he wasn’t going to go with her to the cemetery. He told her that she should go with her family.

[16] It was clear from the evidence of all parties that at the time, that Dillon had been accepted as a member of the family. He had been dating Samantha for a period of time; he had been entrusted with the code to the garage and the neighbour Mrs. Lloyd believed that he was lazy for not bringing in the trash bins because she obviously believed that he was very much intertwined with the Wolff family.

[17] It is clear, that there had been discussions about the plans and expectations of the family attending at the funeral. It was anticipated that Dillon would accompany them to the burial and his decision not to do so was made at the last minute. One would have thought that if his real intention was to let the immediate family go on without him to the burial that he would have said so in advance. Also, one would have thought that he would have wanted to be with his girlfriend to console her on a day where she would be struggling emotionally.

[18] In my view, the logical reason for the change of plans was the fact that he was angry that Samantha was upset about his unilateral decision to join the military which he considered to be a good opportunity for him. I accept Samantha’s evidence that he changed his mind about staying after their discussion and “stormed off” as she described. Her evidence on this point made sense. His did not.

Ability to Recall Times

[19] Dillon was challenged on his memory of times. He explained in his evidence that he arrived at his residence at exactly 1:35 and that he knew this because he had “a habit of looking at the clock in my truck every time I get in and out of it.” He also explained that “Throughout my time in the army, I was often told that if you’re not 15 minutes early, you’re late for most things. So, I have a habit of looking at the time a lot.”

[20] This evidence was given to bolster Dillon’s defence that because of the times that he could establish, he could not have committed the offences. There were a number of difficulties with this evidence. In particular, this ability to recall the exact time that he did things contradicted Dillon’s evidence that he departed from the funeral home “Between 1:10 and 1:15”.

[21] It also contradicted his actions that morning because he showed up, by his own admission, “about five, ten minutes late” because he had to change a shirt. It would seem to me that the time of arrival at his girlfriend’s family funeral would be an important event in Dillon’s life. No doubt, changing a shirt takes a couple of minutes, but the expression “if you’re not 15 minutes early, you’re late” hardly rings true in this particular situation. Also, logically, if one was late and a true keeper of time, one would look at the clock in the car upon arrival to know how late one was. Clearly, Dillon did not do this, which contradicts his evidence that he looks at the clock every time he gets in and out of his vehicle.

[22] This evidence that he arrived “about five, ten minutes late” also contradicted his statement to the police given shortly after March 7th, where he told the officer that he arrived at exactly 10:03.

[23] It was demonstrated many times by the Crown in cross-examination that Dillon’s memory was not as precise as he claimed. He often could not remember precise times. More telling, is the fact that he could not remember what he had purchased on the day in question when he went to the Circle K.

[24] Dillon was shown a bank record which indicated that he had made a purchase from Circle K at 585 Doon Village Road, on March 7th at 2:02 p.m. He was asked what it was that he purchased and testified that he had bought a single pack of John Player’s Regular Blue cigarettes. He then offered that he knew the time of the transaction as 2:02 because he got back into his truck and saw on his clock that the time was 2:04. This remarkable memory for detail was unfortunately undermined by the fact that Dillon clearly was wrong about what he had purchased that day. He was asked the question specifically by his counsel a number of times, including the following:

Q. And what did you do when you entered the Circle K? A. I bought a pack of cigarettes.

[25] He then went on to explain that it was “A single pack of John Player’s Regular Blue”. Dillon obviously bought more than a pack of cigarettes because when it was analyzed, the math simply did not work. Under cross-examination, he agreed that he must have purchased other items, but did not remember what they were. He guessed that he may have also purchased gum but that added together with the cigarettes was still not close to the total he had spent that day. His brother testified that Dillon had bought energy drinks. Either way, Dillon’s memory was obviously faulty on this point and illustrated the frailties of one’s memory. In my view, it also demonstrated one of the pitfalls of trying to bolster one’s evidence by making it better than it actually was.

[26] Dillon was asked what time he got home after buying the cigarettes. Given that Dillon testified that he always checked his truck for the times when he got in and got out of it and could remember them with certainty, one would expect that he would know the exact time of his arrival, given that it was in the same time frame. His answer was “Roughly 2:15, 2:10, 2:15.” I find that Dillon was not certain of this time and conclude that the reason why he didn’t know it with any degree of certainty was not because his memory was human, but because it was considered by him to be unimportant to his defence.

[27] On its face, this evidence is not important. A matter of a few minutes one way or the other usually makes no difference. However, it is the assertion that Dillon has a unique ability to remember with exactitude the times of events which of themselves really have no importance, unless looked at after the fact, to support an alibi defence, that causes me concern. He cannot remember any other times with precision, including those relating to events that occurred within minutes of the contentious times and this leads me to the conclusion that these assertions are simply not true and are an attempt to manufacture evidence to support an alibi.

[28] There were a number of further examples of how Dillon did not have an accurate memory regarding time. The Crown asked Dillon when he had purchased his last package of cigarettes. His answer was that it was three or four days prior to his testimony. When asked the time that the purchase was made, his answer was “No, I’d say maybe 7:55, 8:00ish.”

[29] The question further illustrated the point that if Dillon couldn’t remember the exact time of the purchase of cigarettes only a few days before his testimony, it was logically unlikely he wouldn’t be able to remember times with exact detail that had taken place almost a year earlier. I don’t accept that Dillon has an exact recollection as to the times that he testified to.

Travel time to Samantha’s House

[30] Dillon was cross-examined on the time that it would take to travel from Samantha’s house to his own. He explained that although he had been to her residence hundreds of times, he did not know the fastest way and that he usually took a much longer pathway to get there than necessary.

[31] From a common sense perspective, this evidence made no logical sense. By our nature, as humans we tend to like familiarity including travel routes. Logic would suggest that it is difficult to believe that Dillon would not have known the fastest way to get to his girlfriend’s residence and that he would have consistently chosen a route that would be less direct and would take a lot more time. It would also contradict his explanation about being trained in the military about being 15 minutes early because a longer route would add to his travel time.

[32] This is simply not logical and in my view, was offered to try to explain that on the day Lexi was hurt, Dillon could not have had the time to go to the Wolff residence and then return home in the time frame involved. I do not believe him on this point.

Affection for Lexi

[33] Dillon testified that he would not have hurt Lexi because he “love[d] the little shit even if she hates me.” The evidence from Samantha and her parents was striking about the personality of their dog. Lexi loved people. When Dillon first came over to visit, Lexi was happy to see him but as time passed, not only did she shy away from him, but she was “terrified” according to Mrs. Wolff and hid away.

[34] When members of the Wolff family gave their evidence, they were asked whether Dillon walked Lexi and they agreed that he had done so once or twice earlier in his relationship with Samantha. Dillon testified that he walked Lexi many times and brought treats for her.

[35] This evidence directly contradicted the testimony of Samantha who went into detail to suggest that bringing treats and walking Lexi was something that had been suggested by their vet to try to socialize Lexi and Dillon. Samantha testified that her boyfriend agreed to do so, but then, did not follow through. She also testified that Dillon only walked Lexi a couple of times. Given her level of concern, in my view, it makes sense that Samantha would have been very sensitive to this issue as to how often Dillon spent time with Lexi.

[36] I see no reason to disbelieve Samantha and her evidence regarding the fact that Dillon did not walk Lexi on a regular basis. This was corroborated by her parents. Logically, it doesn’t make sense that Dillon would be making such an effort towards a dog that clearly “hates” him and do so when family members were not around. If he did in their absence, one would think that he would go out of his way to tell his girlfriend that he had tried to follow the suggestion made by the vet so that she knew. Surely, he would want to show that he was trying and would bring treats and show members of the family as it had been suggested.

[37] Therefore, unless I accept that Samantha and her parents are not telling the truth about this issue, I must conclude that Dillon did not do these things and gave this evidence to bolster the suggestion that he couldn’t be the culprit in this case, because of his affection for Lexi. I do not believe him on this point.

ALIBI EVIDENCE OF THE BROTHERS

[38] Dillon’s two brothers were called by way of alibi evidence. He is lucky to have siblings who will go to bat for him and they did their best in the circumstances. Both brothers testified that Dillon was with them playing video games and as a result, couldn’t have been at the Wolff residence when Mrs. Lloyd saw his red truck. I agree with counsel that the principles of W.D. apply with respect to the alibi evidence.

[39] Michel Palimaka testified that he was living with his parents and brothers Coby and Dillon on March 7th, 2019. He too claimed to have a precise recollection as to times regarding the events of the day.

[40] Michel testified that he woke up that day at “1:30ish” and heard Dillon yell something about going to the convenience store to buy energy drinks. Dillon then came home between 1:50 to 2:00 p.m. Michel went to the kitchen and they talked and then went downstairs to play video games for the rest of the afternoon.

[41] Michel was very hesitant when answering questions. As a general rule, I do not place much weight, if any, on the demeanour of a witness. It is my view, that without really knowing an individual, it is unfair to be critical of witnesses because of their manner of expressing themselves.

[42] However, this case is somewhat different. Michel had no difficulty answering questions in chief. However, in cross-examination, it was clear that he was trying to think through the suggestions that were being put to him. He constantly asked that simple questions be repeated by the Crown and then took a long time to answer them.

[43] I have it noted a number of times that when the tough question in an area would be asked, Michel would ask that it be repeated and then take a long time when giving the answer. On one occasion, the Crown pointed out that it took Michel 50 seconds to give an answer. Courts expect witnesses to do the best that they can when answering questions. Sometimes it is necessary for a witness to think about a recollection in order to be accurate. In my view, that was not what was happening in this case.

[44] One of the difficulties Michel had in giving his evidence was the fact that he had not been asked to recall these events until some considerable time later. Dillon was not arrested right away by the police. He was arrested on April 7th. Michel was initially not told about the arrest details and the allegations supporting it. It was only months later that he was asked about the specifics regarding the events of March 7th.

[45] In October, 2019, Michel was interviewed by the police. They had tried several times to contact him by leaving messages, but according to Michel he was unable to connect with the investigating officer. When he was finally interviewed, Michel provided answers to questions that were also asked of him at the trial.

[46] He was asked what time he woke up that day. His answer was “at around, no I woke up at 1:40”. He said that he remembered the time because he has his phone by him and he remembered the time. This evidence contradicted his testimony in chief where he said that he woke up at “1:30ish”. When asked to explain the discrepancy, Michel hesitated before answering. He then took the position that 1:40 was incorrect and that his memory of 1:30ish was more accurate.

[47] Michel acknowledged that he told the police that Dillon got home that day at 2:15 p.m. and not 1:50 to 2:00 o’clock as he testified before me. His explanation for this discrepancy was that on the day of the interview with the police he “did stretch it out. I felt a bit pressured.”

[48] It is agreed by the Crown and Defence that Dillon was at Circle K at 2:02 because of the bank document confirming the time. It is the Defence position that Dillon was at home prior to attending at the Circle K. If that was the case, there is no possibility that Michel’s evidence with respect to Dillon’s return time of 1:50 to 2:00 o’clock from Circle K is correct.

[49] The Crown submits that perhaps Michel was thinking of a different day because there were so many afternoons where the boys got together to play video games and therefore, Michel may have confused which one of these days he was remembering. In my view, that is a generous position.

[50] Michel’s insistence that he is correct about the times of the events on March 7th, given that there was nothing in particular that was unusual which might create a specific memory for him; the fact that he wasn’t asked to think about times for a substantial period after the fact; the fact that he told the police something different when asked to recall events 7 months afterwards and the fact that his recollection of the events is impossible if I am to accept that Dillon was at the Circle K to get cigarettes or energy drinks at 2:02, leads me to reject it. It also does not leave me in a reasonable doubt.

[51] Coby Palimaka also testified on his brother’s behalf. He is a nice young man who was working as a Teacher’s Assistant that day and says that he came home around 1:45 in the afternoon. He too has a unique ability to remember obscure times for no particular reason.

[52] More specifically, he testified that on March 7th, he recalled that Dillon and Michel came downstairs and walked by him at 2:15 p.m. He remembered that time because he checks times whenever people come by because it is good to know and it is helpful when his parents ask about the comings and goings of his two brothers.

[53] Coby recalled that he heard Dillon and Michel talking at 2:00 o’clock in the kitchen before they came down. It probably does not need repeating, but this would again be impossible if Dillon was at the Circle K at 2:02, having just texted Samantha at 1:58 from the parking lot of the variety store, if Dillon is to be believed.

[54] Again I would repeat, it is not unusual that someone would not specifically recall events in such detail so many months after the fact, especially when there was no triggering event to cause such a memory and the issue didn’t become important until a number of weeks or months later. What is important, as is illustrated in this case, is the insistence by Coby that he is accurate in his recall.

[55] When asked about when he learned the importance of this recollection of time and when he learned about the alleged incident, Coby could not really recall. His answers were equivocal at best.

[56] He also gave a statement to the police. He told them twice in that interview, that Dillon and Michel came downstairs at 2:30, not 2:15 as he testified before me. Being out fifteen minutes ordinarily wouldn’t be an issue but for the insistence that he knew that they came downstairs at 2:15 because he checked the time.

[57] Coby was asked other details about the incident. He testified that he didn’t know what the issue was between Dillon and Samantha on March 7th. He said otherwise to the police when they interviewed him and told them that he knew about the argument and how it started.

[58] When pressed about the time that he heard his brothers talking in the kitchen, he reaffirmed his position and offered “I know for a fact that I heard them upstairs at 2:00”. In his statement to the police, Coby offered that they were upstairs at 2:10.

[59] It is difficult at best to believe a witness who insists that he or she can remember the smallest of details when there is nothing to prompt such a recollection. Even those with an eidetic memory are said to be able to recall images for only a short period of time. In this case, it was a substantial period of time that had passed before Coby was asked to reflect upon the times that events occurred on March 7th. The fact that he either misrepresented the times to the police when they interviewed him, or now remembers things differently, completely undermines his credibility on this issue. As a result, I do not believe him and his evidence does not leave me in a reasonable doubt.

[60] One might ask, what does it matter if the time was 1:50, 2:00, 2:15 or 2:30. In this case, time does matter. The Crown’s theory is that Dillon returned to the Wolff family residence between 2:02 and 2:50 when the text conversation between Dillon and Samantha began. In my view, it is obvious that the Palimaka brothers adjusted their recollection of times so that it would look like it was impossible for Dillon to have travelled back and forth to the Wolff residence within that window of opportunity. The fact that they were prepared to do so completely undermines their credibility and reliability.

LEGAL PRINCIPLES TO BE APPLIED

[61] The Crown’s case is based upon circumstantial evidence. As such the standard of proof requires that the Crown satisfy the court that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.

[62] Justice Watt in the Court of Appeal decision of R. v. Lights, 2020 ONCA 128 set out the test for the court to consider at paragraphs 37 and 38:

[37] To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, [1988] 2 S.C.R. 345, at pp. 360-61; Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.) at p. 76.

[38] Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded in logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw, [1972] S.C.R. 2, at p. 8.

EVIDENTIARY FINDINGS

Lexi’s Fear of Dillon

[63] Dogs are not human beings so they cannot communicate in words the way we normally speak to one another. However, dogs can communicate in other ways. In this particular case, Lexi made it known that she was afraid of Dillon. More importantly, this fear developed over time for no obvious or explained reason.

[64] Lexi is described by those who know her best as an affectionate dog who interacts well with people. Initially, she did so with Dillon but that changed over time. The Wolff family did not observe anything that could explain this change in personality. Lexi became afraid of Dillon and would run away and hide from him.

[65] Dillon explained that this may have happened because his family acquired a dog named Chewy and that Lexi may have been threatened by the smell of Chewy. I reject that explanation for a variety of reasons.

[66] I accept that Samantha was very sensitive about the relationship between her dog and her boyfriend. Her evidence was that her friends and neighbours have dogs and pets and that Lexi is not affected by their smell. I accept Samantha’s evidence that the scent of Dillon’s dog Chewy had nothing to do with Lexi becoming terrified. She testified that Dillon and Lexi got along well when Dillon’s family first got Chewy. According to Samantha, it wasn’t until a few months later that Lexi started shying away from Dillon.

[67] Common sense would suggest that dogs have a good sense of smell. However, the evidence before me would suggest that it was immediately upon seeing or hearing Dillon, that Lexi would run away and hide. Therefore, it was the sight or the sound of Dillon rather than the smell of Chewy which caused Lexi’s reaction.

[68] Finally, if I were to accept Dillon’s evidence that he was making efforts to have Lexi accept him, logically one would think that if he genuinely believed that it was Chewy’s scent that was disturbing Lexi, that he would change his clothes before going to visit.

[69] In my view, it is reasonable to conclude that Lexi developed a fear of Dillon because of some intervening act or acts rather than the scent of his dog Chewy. Given that no one from the family witnessed Dillon do anything inappropriately with Lexi, it is logical to conclude that something must have happened between them when no one else was there to witness it.

Entry into the House

[70] I accept the evidence of Mr. and Mrs. Wolff that they locked the door before they left and that they closed the garage door. All of the members of the family testified that they were very cautious about locking the doors and checking before they left. I see no reason to conclude that they did not do so on this occasion. In particular, I accept the evidence of Susan Wolff that she specifically recalled that the doors were locked and that they double checked them together.

[71] There was no sign of forced entry. Therefore, someone either entered the house through the garage or through one of the keyed doors. Only the Wolff family members and Dillon knew the code to the garage. Only the Wolff family and their elderly neighbour Mrs. Lloyd had a key to the house. It was agreed that Mrs. Lloyd did not harm Lexi. The family was at the funeral when Lexi was injured. Therefore, the only other person to have access to the home without forced entry, at the time Lexi was injured, was Dillon Hamilton-Palimaka.

Purpose of the Entry into the Home

[72] There was no damage done to the home. Nothing was taken. Therefore, it is reasonable to conclude that someone attended at the residence for a purpose other than for stealing from it or vandalizing it. According to the Wolff family, Lexi loved everyone except Dillon and she was alone in the home when she was attacked. There would be no reason for an intruder to viciously attack Lexi. She was small affectionate dog who liked people and was not a guard dog.

[73] It appeared from the evidence found throughout the house that Lexi was being pursued and was trying to escape. It is logical to conclude that the person who attacked Lexi had a motive for doing so because of the extent of the attack. Someone either very much disliked Lexi or wanted to hurt her or hurt her owner. The person who committed the offence also left a clear message that the abuse was done on purpose as evidenced by the blood smears on the walls. There was only one person upset with Samantha at the time. That person was Dillon.

Lack of Urgency when Leaving the House

[74] Lexi was brutally attacked. The hose to Mr. Wolff’s CPAP machine was ripped apart. There were claw marks under the bed which suggest that Lexi was pulled against her will from under it. She was missing a tooth. Feces and blood were smeared on the wall going downstairs.

[75] It is logical to conclude that the person who committed these acts was not in a hurry. Common sense would suggest that a person unfamiliar with a home that they were breaking into would get in and get out as quickly as possible. In this particular case, it would appear that the perpetrator knew that he had time; time to pursue the dog into different parts of the home; time to go back and take the feces and blood of the animal and smear it five feet high on the stairway going down stairs to make a statement.

[76] In my view, it would be logical to conclude that a person would only take the time to do these things if they believed that they were not going to be caught by a family member walking through the door at any moment. It suggests that the perpetrator knew that the family would not be coming back while he or she was there.

[77] In this particular case, the family had attended a funeral. At the time of Dillon’s sudden departure, the Wolff clan was on its way to bury a cherished member of its family. It would be reasonable to believe that they would be honouring the memory of her for some period of time and that no one would be returning home soon. Logically, the number of people who would know this other than Dillon would be very limited.

The Red Truck

[78] Susan Lloyd was the next door neighbour to the Wolff family. In my view, she was a good witness. I do not accept the suggestion that she colluded with others regarding her recollection of events. Like all witnesses, she did her best to recall events. She may have been incorrect on details, but I accept that she did not hurt Lexi and that she made important observations on the day involved.

[79] Mrs. Lloyd knew Dillon’s truck. She described it as red with a long box. Dillon agreed that his truck was red and that he often parked it in the very place where Mrs. Lloyd observed it that day. He described his truck as having a short box. In my view, this fact is of no relevance. Mrs. Lloyd and Dillon both appear to be passionate about their beliefs in long box and short box trucks. What is important from my perspective, is not how they describe the box of the truck, but the fact that Ms. Lloyd had seen Dillon’s truck many times and knew it well. As she stated unequivocally when pressed in cross-examination “It was his truck.”

[80] It was her testimony that on the day of the funeral, she arrived home around 2:00 to 2:10 in the afternoon because she worked to 2 o’clock. She recalled that while driving to the mailbox, she observed Dillon’s truck in its usual place. She thought to herself that it was odd that Dillon didn’t bring in the garbage bins in because the garbage had been picked up earlier that day. Later in the afternoon, she noticed that the truck was not there.

[81] Mrs. Lloyd also testified that there are no other trucks owned by others on the street that resemble Dillon’s red truck.

[82] Dillon’s father testified on his son’s behalf. He gave evidence that commencing in May of 2019 up to November of 2020, that he drove by 42 Springmount Drive and observed a red pickup truck in the driveway or by the house on four occasions. 42 Springmount Drive is seven houses down from the corner of that street and Michener where the Wolff family lived. Mr. Palimaka never saw the red truck parked on Michener Crescent.

[83] The Crown describes the issue with the truck as a ‘red herring’. I agree. I see no reason to reject Mrs. Lloyd’s evidence that she saw Dillon’s truck parked in its regular spot outside of the Wolff residence. Even if I am wrong in this, in my view, it does not impact on my ultimate analysis.

Other Evidence to be Considered

[84] I accept that Lexi never suffered any injuries before Samantha began dating Dillon, and that all of the injuries occurred while the two of them were dating.

[85] I also accept that Lexi suffered unexplained injuries on at least three occasions, and that Dillon was the first person to discover them on at least one occasion.

[86] Dillon acknowledged that he told Samantha that he had “a really explosive temper” and that she “wouldn’t want her to be around” him when it happened.

[87] Finally, Dillon acknowledged that he had been given a card by his mother to deliver to the Wolff family at the funeral and that he had forgotten to give it to them it at that time.

POSITION OF THE PARTIES

[88] The Crown submits that the case against Dillon is overwhelming and that the only reasonable inference that could made is that he was angry with Samantha, he went to her house after leaving the funeral, he set upon Lexi and brutally injured her. The Crown asks me to reject the Defence evidence and find Dillon guilty of the offences as charged.

[89] The Defence submits that Dillon and his brothers were believable witnesses, or that at the very least, their evidence either together, or independently, ought to leave me in a reasonable doubt. Therefore, I should acquit Dillon of the charges before the court.

ANALYSIS

[90] In my view, it would be impossible to come to any other logical conclusion other than to find that Dillon Hamilton-Palimaka injured Lexi on March 7th, 2019. With some apology for repeating some of the evidence and findings, the following are my reasons for making such a finding.

[91] The evidence establishes that Lexi was loved by Samantha and her family. She was an affectionate dog who liked others. Until Dillon started dating Samantha, Lexi had not suffered any injuries. After Dillon started dating Samantha, Lexi suffered a number of unexplained injuries. Dillon was either the first person to find Lexi after she had been injured or was planning to be at the residence alone on the day when the injury occurred. For some unexplained reason, this friendly dog who initially liked Dillon became terrified of him and ran away every time she heard his voice or saw him come through the door. In my view, the only reason for this is because Lexi had experienced something very unpleasant at the hands of Dillon.

[92] March 7th, 2019 was an emotional day for the Wolff family and for Dillon, but for different reasons. He had been notified of his posting to Meaford and was no doubt excited about it. However, when he told Samantha, she was not happy, and they engaged in an argument. Dillon “stormed” out after their discussion and left the funeral early. I accept Samantha’s evidence about what happened at this time for the reasons given.

[93] Dillon had been asked by his mother to give a card to the Wolff family. He says forgot to do so. In a text message conversation between himself and Samantha after Lexi was discovered injured, he tried to explain that he was not the culpable person. He sent a text saying: “And after the funeral I went straight home I did however forget to give your mom the a card from my mom. Secondly why would I do anything to her …”

[94] In my view, these words between Samantha and Dillon were being sent back and forth hastily as is often done when people are texting, especially in emotional circumstances. The question that comes to mind is why would Dillon join those two thoughts together about going straight home and forgetting to give his mother’s card, since they seem to be unrelated?

[95] The logical question that comes to mind is, did Dillon go to the Wolff home after leaving the funeral when he realized that he had not given the Wolff family his mother’s card? Is that why he mentioned it?

[96] Alternatively, did he go there because he was angry and wanted to hurt Samantha and knew that the best way to do so was to hurt her dog? Dillon acknowledged that he can have an explosive temper. Whoever hurt Lexi was not thinking right that day. To pursue and brutally injure a dog in such a fashion and then to smear the feces and blood on the wall is the act of a sadistic person or someone who was fueled by anger and emotion and had little time to think things through.

[97] I accept that the Wolff family locked their doors before they left for the funeral. Only Mrs. Lloyd and Dillon had access to the home other than the family who were at the burial. I accept as did counsel that Mrs. Lloyd did not commit these acts. Dillon is the only other person who had access to the home. The fact that there were no signs of forced entry and that nothing was taken, further supports the inference that it was not an unknown third party who entered the home that day.

[98] The person who brutalized Lexi knew that they had time to chase her down, beat her and then leave the smear on the walls for others to see. This leaves me with no choice but to come to the inescapable conclusion that it must have been Dillon. He was the only person to know that the Wolff family would not be coming through the door at any moment.

[99] I accept that Mrs. Lloyd saw Dillon’s truck parked in the spot that Dillon usually left it when he visited Samantha.

[100] Having said that, I think that it is only fair that I deal with the evidence of Dillon’s father, Andrew Palimaka. I have no reason to disbelieve this man. I accept that someone with a red pickup truck lives down the street and around the corner to the Wolff family home. The inference that I am asked to make, is that Mrs. Lloyd saw that person’s truck and not Dillon’s on March 7th, 2019.

[101] This is pure speculation, which is unsupported by any other evidence. There is no evidence to support the proposition that the person who lives on Springmount Drive parked his or her vehicle in front of the Wolff residence on the day in question. Logically, there would be no reason for them to do so and he or she was not called as a witness to offer what would have to be considered as an unusual explanation.

[102] However, even if I accept that it is within the realm of possibility that Mrs. Lloyd, who knew this vehicle well, having seen it many, many times and which had some unique characteristics, was mistaken, it would open the door to other possibilities. I say this recognizing that the following comments are only speculation on my part.

[103] Mrs. Lloyd believed that she worked to 2 p.m. that day at Freshco and saw the vehicle around 2:10 to 2:15 in the afternoon. The Defence is built around this fact. What if she didn’t see his truck at that time? That would mean, that it could have been at the Wolff residence before 2:00 o’clock and before Mrs. Lloyd came home. There is no other evidence about Dillon’s movements after he left the lunch which was scheduled for 12. Presumably Dillon left around 1 o’clock. The family then departed to the cemetery. Dillon left angry. He didn’t text again until 1:58 in the afternoon, about an hour later.

[104] There are a number of questions which come to my mind. Did he go home or did he go to drop off the card at the Wolff residence? Did he have the time to pursue Lexi throughout the house, have the time to brutalize her and then take the time to smear the blood and feces against the wall to send a message because he knew that no one was coming home?

[105] I do not accept the evidence of Dillon or his brothers as to his being at home at the times of day that they say. The drive from the Henry Walser Funeral home to Michener Crescent is no more than ten minutes. It would leave lots of time for Dillon to have committed this offence and then arrived at the Circle K close to his home by 2:02. Reasonably he would be home by 2:10 or 2:15 which seems to be consistent with the original statements of the Palimaka brothers if he left shortly after his purchases.

[106] This is all speculation on my behalf. Only Mr. Hamilton-Palimaka knows the events of that day and when they transpired. The theory only requires one missing piece and that is that Mrs. Lloyd is in error about the time that she left work that day. Perhaps she generally works to 2 but left early. As someone who worked in a grocery store, I certainly know that such possibilities exist.

[107] Common sense would suggest that we default to our memory of what we routinely do when trying to remember what we did in the past. It would not “be a stretch” to use Michel’s words to find that Mrs. Lloyd simply relied on the time that she normally departs from work instead of the time that she actually left that day, when speaking with the police. To a certain extent, we know that she was doing that because her evidence was that it takes about ten minutes for her to get home and so that is why she knows the time that she saw Dillon’s truck.

[108] The other theory that is consistent with the facts is that it was Dillon’s truck that Mrs. Lloyd saw, but that she was mistaken and it was sometime after 1 o’clock that she saw it and not 2. If nothing else has been established in this trial, there is one thing for certain that we know. Human beings do not have perfect memories, especially when it comes to time.

[109] It is rare for a judge to offer alternative theories to a case and I appreciate that I am not finding that the Crown has proven these specific theories as to the time of the offence beyond a reasonable doubt. However, my point is this: there may be a number of reasonable explanations as to when this offence occurred. In this case, it is not necessary for the Crown to prove the exact time of the offence when there is clear evidence that it could have taken place during a window of time. As stated in Villaroman, the Crown must prove the case beyond a reasonable doubt and negate any reasonable possibilities raised by the Defence through the evidence. In my view, the Crown has done so in this case.

CONCLUSION

[110] Dillon Hamilton-Palimaka had motive, opportunity and the means by which to commit this crime. He is the only person who could have done it under these circumstances, and I accept the Crown’s submission that it is the only reasonable conclusion that can be drawn from the evidence.

[111] That does not necessarily end the matter. As I must, I feel that it is important to give consideration to the Defence evidence and the principles of R. v. W.D. This requires that I give a reasoned analysis of Dillon’s evidence to determine if it might leave me in a state of reasonable doubt. I found Dillon’s evidence to be problematic for the reasons that I have set out earlier in my judgment. It is my view that Dillon reconstructed his testimony based on the text messages that were in existence and the time that he got to the Mac’s or Circle K convenience store. I would also find for reasons given that he was not telling the truth about what happened on March 7th, 2019.

[112] It is important that a trier of the facts not dissect the evidence of an accused person and disbelieve it because of minor errors that have been made. In other words, it is not fair to put the accused’s evidence under a microscope and reject it because it is not perfect. I have reviewed Dillon’s evidence a number of times. I do not find it to be believable and have given examples of why I have come to the conclusion. As I have said previously, I do not believe him.

[113] I also say this, because when having considered Dillon’s evidence and that of his brothers, who were clearly trying to help a family member, I cannot say that I believe it or that it leaves me in a reasonable doubt. I would therefore reject it and make a finding that the Crown has proven beyond a reasonable doubt that Dillon is guilty of the offence of Unnecessary Pain to an Animal on March 7th, 2019.

[114] With respect to the Break and Enter charge, I would acquit Dillon of that count. He was given permission to be in the Wolff home and had the code to the garage because they had given it to him understanding that he could enter the home while they were not there.

[115] I cannot say with certainty that he entered the home for the purpose of committing an offence. It is equally consistent with the evidence that he may have decided after leaving the funeral to drop off the card and entered the residence for that purpose. His emotions may have gotten the best of him when he saw Lexi and then he decided in the heat of the moment to take out his frustration on the dog and then leave a message for Samantha. There are reasons why Dillon may have entered the home and then changed his mind and did what he did. Although I may be suspicious, I cannot say that it has been proven beyond a reasonable doubt that his purpose for entering the home was to commit an offence.

[116] With respect to the Wounding charges between June 1st, 2018 and March 7th, 2019, the Crown is not seeking convictions on those matters and so on that basis he will be acquitted of those charges.

[117] I would like to thank counsel for the time that they have invested in this case and their thoughtful submissions.

Released: February 9, 2021 Justice W. G. Rabley