Reasons for Sentence

Court File No.: CR-19-1699-00
Date: 2025-02-11
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Nathaniel Dillon

Appearances:

• Igor Osowski, for the Crown
• Nathaniel Dillon, self-represented
• Douglas Holt, as amicus curiae

Heard: September 18, December 11, 2024

Publication Ban:
Publication banned under section 486.3 of the Criminal Code with respect to information that could reveal the identity of the complainant. This judgment complies with the ban and can be published.

Judge: D.E. Harris

The Outstanding Counts

[1] Mr. Dillon was found guilty of assault and sexual assault committed on June 25, 2018 against his then girlfriend, ZK: R. v. Dillon, 2023 ONSC 6878. It was noted in my judgment at the time that there were few if any submissions on the forcible confinement and threatening counts allegedly committed on the same offence date as the other offences charged in the indictment. The Crown and amicus were invited to make additional submissions on these counts.

[2] Further submissions have now been heard. The Crown invites me to dismiss the forcible confinement. That count is dismissed. With respect to the threatening, guilt or innocence depends on essentially the same body of evidence as did the assault and sexual assault counts. The key evidence which led to the findings of guilt with reference to these, besides the evidence of the complainant, was the large, distinct bruises on the complainant’s chest as depicted in photographs taken two days after the offence.

[3] The complainant testified that the accused threatened to kill her during the assaultive behaviour, not long before the sexual assaults. I concluded in the reasons for judgment that she was a credible witness and that the bruises were important confirmation of her evidence and were sufficient to prove the case beyond a reasonable doubt. I would say the same with respect to the threatening count. There is no reason to take a different approach.

[4] Because the accused did not testify, the key issue was the complainant’s credibility. And I find again, that the bruises bolster the complainant’s credibility and demonstrate that she is a credible witness. Therefore, I find beyond a reasonable doubt that the accused threatened the complainant. There will be a finding of guilt on that count.

The Sentencing

[5] The leading case on invasive sexual assault is R. v. A.J.K., 2022 ONCA 487, para 77 in which it was decided that a range of three to five years is warranted. The Crown asks for four-to-four-and-a-half years incarceration for Mr. Dillon. Amicus asks for a sentence at the lower end of the range.

[6] The aggravating factors are that this was a sexual assault on an intimate partner, that it was exceedingly frightening for her and combined both a fairly serious assault and two sexual assaults, one involving penetration. I would add to this the relative youth of the complainant. Ultimately, she was terrorized by Mr. Dillon for quite a long time in the confined space of her own bedroom.

[7] The victim impact statement of ZK is nothing short of harrowing. She describes herself as “damaged goods” and was very seriously traumatized. The pain and suffering is long term and continues to this day, now six years after the offence was committed. Ms. ZK lives in constant fear. She was unable to work for over a year. It is hoped that she can get this behind her. She is a courageous woman having come forward and testified in this trial.

[8] In the last section of her statement entitled FEARS FOR SECURITY, Ms. ZK describes how she is petrified that Mr. Dillon will come looking for her some day. This is a very common apprehension of a survivor of a violent offence, particularly sexual assault. Many if not most victims have a lurking fear of this occurring in the future. I want to take this opportunity to ensure Ms. ZK that understandable as her fears are, they are greatly overblown and unrealistic. Mr. Dillon has his own issues with which he must contend. She is the least of his problems.

The Mental Health Issue

[9] It was clear during the trial that Mr. Dillon has mental health issues. There was the very strange numerology fixation elaborated on in the previous judgment. In court, Mr. Dillon would without warning launch into prolonged dissertations on nothing in particular, going in tangents all over the place. Having seen him over many months, it seems to me that his mental health is only getting worse. As a result, after finding him guilty, I ordered a Form 6 psychiatric assessment under Section 22(1) of the Mental Health Act, RSO 1990, c M.7.

[10] In my opinion, it is imperative that, especially if an offender is to be incarcerated, any significant mental health issues ought to be identified beforehand if at all possible. Jail is quite clearly not a hospitable environment for those with serious mental health issues. Mental health deteriorates in jail and those with preexisting mental health issues almost invariably get worse.

[11] From both the public and offender’s point of view, there is an overriding interest in an offender coming out of jail in better mental health than when he went in. This better protects the community. That result is difficult to achieve if the problem is not identified before going in. This equips the correctional authorities to give them a head start to understand and treat the illness. Hopefully, the incarceration itself can be better geared to the offender if the jail authorities are aware of the mental illness.

[12] In Mr. Dillon’s case it made sense to attempt to diagnose his mental health issues before sentence. Not only would it afford the authorities a better opportunity to guide the course of his incarceration, it could well impact on the sentence to be imposed on him.

[13] The report that has been prepared in this case is helpful to me and will also be helpful to the correctional authorities. It was written by Dr. Lily Van, a forensic psychiatrist. She completed her psychiatry residency training and forensic psychiatry subspecialty training at the University of Toronto. She is a staff forensic psychiatrist at the Centre for Addiction and Mental Health (CAMH) and has an academic appointment as an Assistant Professor at the University of Toronto in the Department of Psychiatry. She has been practicing in the field of forensic psychiatry since 2022.

[14] I have taken into account Mr. Dillon’s family history for the purposes of sentencing. He is now 35 years old and has no previous criminal record. He has a high school education. His parents are separated and his father has been living in Florida for some time. His mother has always been supportive according to him. He has only worked sporadically.

[15] There is a mental health history. According to Dr. Van’s report, in 2004, Mr. Dillon was seen at the emergency department at CAMH. He was 16 years of age at the time and was brought into the hospital by his mother. He told the staff there that he had an anger problem and his mother was worried about him. He had threatened his mother with a steak knife and there was a previous incident with his grandmother. His mother had to change the locks on the house due to threats made against his siblings. Also, he had been forging his aunt’s cheques. He was sent to live with his father in Florida but only stayed for a short time. He threatened his father with a knife. The mother also said that he had made suicidal comments about walking in front of a train. There were other self harm behaviors which were concerning. Mr. Dillon was diagnosed with conduct disorder and discharged home. He was referred for youth counseling.

[16] In 2015 Mr. Dillon was brought to the Mississauga hospital by the police for bizarre behavior. He was found running into traffic without a shirt and carrying a blanket, yelling for help. He was noted to be paranoid and refused to eat meals at the hospital. Mr. Dillon said that he had been using cannabis and his urine tested positive for it. He was discharged from the hospital as he was deemed not certifiable under the Mental Health Act.

[17] In September of 2019, Mr. Dillon presented at the hospital complaining of possible hallucinations. When asked to remove his belongings he became extremely paranoid about handing over his phone and Bible. He was restrained physically and with drugs. He reported being assaulted and choked by two assailants and he told the police that a wire could be put into his ear and the recording of these men would become audible for them to hear coming directly from his memory. The psychiatrist who assessed him found that he did not accept that this was a hallucination. The diagnostic impression was underlying schizophrenia in a mild form and complaints of anxiety and insomnia related to it. He was discharged from hospital.

[18] There were several other visits to hospital including in March of 2020, January 31st of 2021, December 11, 2022 and September 2023. A common complaint was that there was an insect in his ear. Urine screening found evidence of cannabis several times. On one occasion, he reported that when he tried to speak, words were not coming out of his mouth so he wondered if his stepsister was trying to control his speech. He said other bizarre things.

[19] Dr. Van noted that Mr. Dillon said that he could stay up for days on end and was feeling euphoric. He made grandiose statements about saving the lives of various people and having brought someone back to life. Mr. Dillon denied hallucinations. He also denied paranoia or thought insertion. He was occupied with religion and said “God chose me. God is all seeing, all knowing. The only thing I fear is the Lord.” He stated that “God exposes everything to humankind. I'm the wrong person to piss off. I'm closer to the moon than NASA is.” Doctor Van noted that Mr. Dillon’s insight into his mental health symptoms appeared to be limited.

[20] Although Dr. Van's assessment was restricted by the lack of access to collateral sources, it was her conclusion that Mr. Dillon suffered from unspecified schizophrenia spectrum and other psychotic disorders. The schizophrenia diagnosis was consistent with the conclusion of other physicians in the past. During the assessment, Mr. Dillon presented with periods of thought disorder and disorganized and tangential thought process as well as religious preoccupation. He also had odd beliefs about numbers which was consistent with the complainant’s testimony that he had an idiosyncratic belief system based on numerology.

[21] It was difficult for Dr. Van to delineate whether the psychosis was due to a primary psychotic disorder such as schizophrenia, a primary mood disorder such as bipolar disorder with psychotic features or as a result of cannabis use. The lack of collateral information made a specific diagnosis challenging. Dr. Van noted that Mr. Dillon had been prescribed psychotic medications but was not taking them.

[22] Dr. Van was kind enough to testify to elaborate on her report. She said that the medical professionals were at loggerheads with Mr. Dillon because of his refusal to take medication.

Conclusion

[23] Mental illness can affect a sentence in essentially two ways. It can reduce an offender’s moral culpability for the crime committed. And, in addition, it can make more severe the impact of a sentence. A person with a mental illness may endure greater hardship serving a sentence of incarceration than would a person without a mental illness: R. v. Rytel, 2019 ONSC 5541, paras 31-71.

[24] I find both apply in the case of Mr. Dillon. His mental health troubles predate the offence. There were hospital visits in 2004 and 2015. The testimony of the complainant confirmed some strange behaviours at the time of the offence, in particular the obsession with numerology. Also, Mr. Dillon became incensed with the complainant accidentally cracking his TV and took it out on her by assaulting her and then sexually assaulting her twice. This response was wildly disproportionate. On its own that may not be indicative of mental illness but with the other evidence, I believe it is.

[25] The offences committed by Mr. Dillon must be seen in the context of his mental illness. I would not classify this as a major factor on sentence. The evidence of ZK does not lay a strong foundation for it in general or that the offence took place in a context of mental illness. But it played some causal part in the offences which then leads to some degree of mitigation: R. v. Ellis, 2013 ONCA 739, paras 117-122; R. v. Badhesa, 2019 BCCA 70, para 42; R. v. Williams, 2019 BCCA 295, para 76.

[26] With respect to the rigors of incarceration being increased by mental illness, this is of substantial weight in this case. It is not speculation that Mr. Dillon’s mental health will make serving time more onerous upon him. It is only reasonable. The authorities support this as a factor on sentence: R. v. Hills, 2023 SCC 2, para 135; R. v. Fraser, 2007 SKCA 113, paras 32-39.

[27] In conclusion I have taken the Morris judgment into account in formulating an appropriate sentence. I also have considered the offender’s lack of a criminal record. This matter took six years to get from charge to sentencing, also a factor. In my view, although the offence here is serious and the impact on the victim has been very damaging, a sentence at the bottom of the range articulated in A.J.K. is warranted by reason of the mental health issues. Were it not for this, a sentence in the range suggested by the Crown may well have been appropriate.

[28] For these reasons, the sentence proportionate to the gravity of the offence and the responsibility of the offender is three years in jail on the sexual assault. The sentence on the assault will be nine months concurrent to the other sentences. The sentence on the threatening will be three months concurrent. The global sentence is then three years.

[29] There has been substantial pre-sentence custody. While Mr. Dillon was being held on these set of charges, custody was also on another set of charges due to be tried in April of this year. The dead-time will be applied to these offences. There is a total of 304 days which with credit amounts to 456 days. On a three-year sentence, there are 639 days left to serve. That will be the sentence imposed. There will be probation for a term of three years with the statutory terms, as well as reporting to a probation officer within 48 hours of release and report as required as well as do not contact directly or indirectly ZK. If Mr. Dillon is eventually sentenced for the other set of charges, the provisions of s. 732.2 apply by operation of law.

[30] Following Dr. Van’s evidence, it is recommended that serious consideration be given to having Mr. Dillon serve his sentence at St. Lawrence Valley Correctional and Treatment Centre. Ancillary orders will issue. DNA, weapons prohibition under 109(2)(a) for 10 years, firearms under 109(2)(b) for life. SOIRA order for 10 years. Dr. Van’s report will be sent with Mr. Dillon to the penitentiary.

[31] I will endorse the indictment accordingly.

D.E. Harris
Released: February 11, 2025