Court File and Parties

Court File No.: WALKERTON 12-297, 12-298

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jason Edward Eyles

Before: Justice G. J. Brophy

Heard on: June 13, 2012

Reasons for Judgment released on: July 4, 2012

Counsel:

• B. Linley for the Crown
• A. Heath for the Accused Jason Edward Eyles

BROPHY J.:

Introduction

[1] Jason Eyles has been charged with a number of offences relating to his being in contact or association with Kristy Hillier. It is alleged that on 30 March 2012 he was associating with her while at the Walmart store in the town of Hanover. It is further alleged that on 2 April 2012 she was present in his apartment in the Town of Durham while he was in the apartment. He was subject to a probation order and recognizance prohibiting this contact.

[2] On Information number 12-297 he is charged with breaching his probation order on 30 March 2012 by associating with Kristy Hillier and by failing to keep the peace and be of good behaviour. On Information number 12-298 he is charged with breaching his recognizance and his probation order on 2 April 2012 by associating with Kristy Hillier.

[3] This trial was heard on 13 June 2012. The defence consented to a joint trial of both Informations and all of the evidence was called at the same time.

[4] The Crown proceeded summarily.

[5] The Defence elected to call no evidence.

Issues

[6] The issues in the case are two-fold:

1. With reference to the 30 March 2012 incident, whether the observations by Chief Tracey David were sufficient to establish the necessary mens rea.

2. With reference to the 2 April 2012 event, whether the identification of Kristy Hillier has been established beyond a reasonable doubt.

Facts

Background - Probation Order – 30 August 2011

[7] The background is that on 30 August 2011, Jason Eyles was placed on probation for 18 months commencing after his release from custody. One of the terms of the probation order was that he was not to associate, contact or communicate directly or indirectly with named persons and in particular, Kristy Hillier. The specific language is as follows:

"(o) Not to associate, contact or hold any communication directly or indirectly with persons named by your Probation Officer and in particular, have no contact directly or indirectly with Kristy Hillier."

First Incident

[8] Chief Tracy David is the Chief of the Police for the Town of Hanover Police Service. On 30 March 2012 while off duty she attended at the Walmart store in Hanover, along with her daughter, for shopping purposes and noted Jason Eyles standing near the entrance with a shopping cart in hand in conversation with Kristy Hillier.

[9] Chief David knew both Jason Eyles and Kristy Hillier from previous police involvement. Chief David noted that the conversation was not loud, but was as if they were having an argument. She was moderately suspicious that their association was improper because of the background information that she had about both of them. Chief David walked past them and was within two feet of them. She could not tell whether they had noticed her. She proceeded further into the store and at some point turned around to look back and saw Jason Eyles, who turned quickly and scurried down another aisle.

[10] This aroused her suspicion even more and she placed a call on her cell phone to Hanover Police Dispatch and asked for information about whether there were any outstanding orders relating to Jason Eyles and a possible non-association with Kristy Hillier. She was told that a probation order did exist to that effect. Other officers were dispatched from the Hanover Police Service to the Walmart store. Chief David waited for a brief period of time to see if she could see Jason Eyles again. She did not. She then conducted a cursory search of parts of the store and still did not find Jason Eyles. She then went outside and met some officers from Hanover Police Service whom she briefed. She then went home.

[11] One of those police officers, Officer Boyko, indicated that he did attend the Walmart store, received the briefing from Chief David, but was subsequently unable to locate Jason Eyles.

[12] The Hanover Police Service then sought assistance from West Grey Police Service in Durham to see if they could locate Jason Eyles. West Grey Police Service on 1 April 2012 were able to find Jason Eyles and he was arrested for breach of probation and taken to Hanover Police Service for processing.

[13] Officer Boyko testified that he processed Mr. Eyles on 1 April 2012 and served him with a notice of intent to produce in evidence a copy of his probation order and provided him with a copy of the probation order.

Recognizance – 2 April 2012

[14] Mr. Eyles was released on a recognizance on 2 April 2012. That recognizance stated that he was to abstain from "... communication, associating or having any contact with Kristy Hillier and that he was not to be at any place known to him to be the place of residence, employment or education of that person."

Second Incident

[15] This then leads to the events of 2 April, 2012.

[16] I have heard evidence from two civilian witnesses and from a number of police officers with reference to this incident. The civilian witnesses are Jeffery Paylor and Rhonda Fredericks, his common law partner.

[17] They testified that they lived in apartment 338-A on Garafraxa Street in the old Town of Durham, which is part of the West Grey municipality.

[18] Mr. Paylor says that the building is an older residential building on the main street of Durham and that it contains three apartments. He says he lives in the north apartment, which is 338-A and immediately behind him is 338-B. The apartment to the south of him, which is also on the main street, is 332.

[19] He says that on or about 1 March 2012, an individual that he knew by the street name Smurf, who is also called Jason, moved into 338-B. A few days later a woman moved in, whom he understood was named Kristy, and that she was helped in that move by a friend of his by the name of Brad. Mr. Paylor was standing on the sidewalk talking with Brad while Brad was helping this woman move into the apartment and that is how he learned her name.

[20] Later in the month, sometime between March 15th and March 21st, according to Mr. Paylor's timeline, although in fact on 2 April 2012 from the police records, an incident occurred.

[21] He says he was in the backyard trimming some trees and was moving back and forth between that location and his apartment. While he was in his apartment, he heard a lot of noise in the adjoining apartment belonging to Jason and Kristy. There was loud thumping that reached the point where canned goods were knocked from the shelves in the Paylor and Fredericks' apartment. He also heard a woman saying: "Stop hitting me." Alarmed, he went around to apartment 338-B and entered the first door and knocked on the interior door and Jason answered the door.

[22] Mr. Paylor complained about what was happening and said that he was going to call the police. While this was taking place, he saw Kristy move quickly from the bedroom across the living room and kitchen area into the bathroom where he heard her crying.

[23] He says that Jason said something about not calling the police and then asked if he could hide in Mr. Paylor's apartment. Mr. Paylor then went back to his apartment and asked Ms. Fredericks to call 9-1-1, which she did.

[24] Ms. Fredericks did not see into the apartment, but did note the loud noise and the cans moving off the shelves. She also confirmed she called the police.

[25] West Grey Police Service attended. Officers McPherson and Koeslag entered into the apartment of Jason, who in fact was Jason Eyles, a person known to all of the officers involved. They were not able to find a female person in the apartment. Officer McPherson noted that the bathroom window was open and had torn screening on it and that a person could have escaped through that window.

[26] Mr. Paylor's evidence also included that he had installed new windows and screens for the apartments approximately two weeks before and that the screen in that bathroom window had been intact.

[27] Officer Nancy McMillan from West Grey Police Service also attended and followed the other two officers into the apartment. She stated that the apartment was in disarray and there was male and female clothing strewn all about. Officer McMillan also noticed that the shower curtain had been ripped down. She also noted broken sunglasses in the bathtub and blood and spit in the toilet. Officer McPherson also saw some toilet paper with what looked like blood on it.

[28] On the counter in the washroom Officer McMillan found an Ontario Health Card bearing the name Kristy Hillier, with a photograph on it of a blond woman Officer McMillan knew to be Kristy Hillier. Officer McMillan showed that card to Mr. Paylor and Ms. Fredericks and they both confirmed that the photo was of the woman who had been living in the apartment.

[29] Officer McMillan saw Kristy Hillier about two hours after the event when she had been located by Officer Kocher standing on Garafraxa Street at the Chester Street corner one and a half blocks away.

[30] Officer McMillan kept possession of the Health Card for a short while and it was later given to Kristy Hillier.

[31] Finally, Mr. Paylor says that after the incident on 2 April 2012 the person he understood to be Kristy continued to live in the apartment of Mr. Eyles. Ms. Fredericks also says that the same woman whom she knows as Kristy continues to live in that apartment.

Discussion

First Incident – 30 March 2012

[32] The Defence argues that an incidental meeting between two people does not in and of itself establish that Jason Eyles had the mens rea to breach his probation order. Counsel presented a number of cases that deal with the question of association, contact and communication. I note that none of those cases are from Ontario and none of them are binding on this Court. However they confirm that mens rea is an essential element of the offence and must be proven by the Crown. Further the cases discuss incidental contact in a common sense way. That is to say that in a small community it is almost inevitable that persons may be in the same place at the same time even if they do not intend any communication or association. There has to be something more than just showing up in a community area and bumping into someone.

[33] The language of the probation order in this case provides that Mr. Eyles is to have no contact with Ms. Hillier. R. v C.A.H. describes "contact" as broader than both "communicate" and "associate". Nevertheless contact still means that it has to be something more than incidentally and momentarily coming into physical proximity. There has to be an element of purposeful contact that is intrusive, disruptive or communicative.

[34] In this case the defence argues that all that Chief David saw was a brief moment in which Mr. Eyles and Ms. Hillier were together and in some form of conversation. The defence argues that the court does not know how that came about. It might have been quite innocent on the part of Mr. Eyles and was not a purposeful encounter. The evidence of Chief David is that she saw the two individuals together in conversation. The Defence argues that this does not necessarily mean that Mr. Eyles was not confronted by Kristy Hillier and was attempting to remove himself from her presence. Consequently, the Defence would argue that the Crown has not proven that Mr. Eyles intended to breach his probation order.

[35] However there is an inference that an accused person intends the act in question, based upon the assumption that one intends the natural consequences of one's acts. See R. v. Giannotti, R. v. Hilson, R. v. Berger, R. v. Borque, R. v. Theroux, and R. v Gill.

[36] The presumption that a person intends the natural consequences of his acts continues so long as the capacity of the accused to form an intent is unchallenged. See R. v. Bird. In this case the capacity of Mr. Eyles has not been challenged.

[37] There is no evidence other than that of Chief David about what occurred. Her evidence has not been shaken or compromised in any way. The evidence is that Mr. Eyles was in conversation with Ms. Hillier. Unless there is something to provide a different context it must follow that he intended to speak to her.

[38] It is an absolute rule that the defence is not called upon to prove anything. However the Court can only base the case upon the facts that are in evidence and the only facts here are that Jason Eyles was talking to Kristy Hillier. It would be speculation to think that the meeting and conversation was of any particular nature, and in particular of an exculpatory nature. There is no evidence that leads the Court in that direction.

[39] A conversation is more than incidental contact of an accidental nature. A conversation implies communication. It is reasonable to think that Mr. Eyles intended to have that conversation and hence that communication. If he intended to have that conversation, then the mens rea is in place. That combined with the actus reus of actually speaking to Ms. Hillier while bound by his probation order not to do so means that he is guilty of the count alleging that breach. The crown has proven that charge beyond a reasonable doubt.

[40] Likewise the breach of probation charge, with reference to failing to keep the peace and be of good behaviour is also made out in that by breaching the probation order, Mr. Eyles was failing to keep the peace and be of good behaviour.

[41] So there will be a finding of guilt on those two counts.

Second Incident – 2 April 2012

[42] Turning then to the 2 April 2012 incident, I make the following comments.

[43] The defence argues that the Crown's case is circumstantial with respect to the identity of the person in Mr. Eyles's apartment and that the test for a conviction on circumstantial evidence has not been met.

[44] The defence most importantly points to the use of the Ontario Health Card photo ID as being improper in that it is presented to Mr. Paylor and Ms. Fredericks one time only with the implication being that this must have been the person in the apartment and then asking them to identify her. The defence argues that for the Health Card to be properly used, it would have to be at best included in some form of photo line-up that met the ordinary standards for such an enterprise.

[45] The Crown argues that although the case relating to the breach of recognizance and probation on 2 April is circumstantial, there is ample evidence that allows the Court to find that the only reasonable conclusion to draw from the assembled facts is that the woman was Kristy Hillier.

[46] The test for circumstantial evidence is that the evidence should be considered, not in isolation, but along with all the other evidence taken as a whole. The strength of the inference to be drawn from an item of circumstantial evidence depends on the context provided by the rest of the evidence. See R. v. White. Further a conviction based on circumstantial evidence requires the court to be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. See R. v. John and R. v. Cooper.

[47] The fact that the witness identifying the accused knew the accused previously is a factor affecting weight. See R. v. Cachia, R. v. Todish and R. v. Leaney.

[48] Let us examine the facts.

[49] The two civilian witnesses knew the woman living in the apartment with Jason Eyles to be a person called Kristy. Mr. Paylor identified her as blond and slim. The photo on the Health Card was of a blond individual. The Health Card also said that the name was Kristy Hillier. The person known to the police as Kristy Hillier was found approximately two hours later standing on the sidewalk about a block and half south of this apartment building. The photo ID card was returned to her and apparently accepted by her. The photograph was examined by Mr. Paylor and Ms. Fredericks and they identified the person in the photograph as the person they knew as Kristy living in the apartment with Mr. Eyles. Mr. Paylor saw that same person in the apartment at the time of his intervention. Mr. Eyles asked if he could hide in Mr. Paylor's apartment. The police saw women's clothing in the apartment. Mr. Paylor and Ms. Fredericks have testified that this person they know to be Kristy continues to live in that apartment. They are her neighbours. Kristy Hillier was seen with Mr. Eyles three days before in Walmart.

[50] All of these facts have to be looked at in determining whether the Crown has met the burden of proving guilt beyond a reasonable doubt. What inferences can be drawn from these facts?

[51] I note that Mr. Paylor and Ms. Fredericks were in error with reference to the date in which they say the incident occurred. It should be recognized that they were not paying attention to the date at the time of the event and indeed had no reason to think that that the date was of any particular importance. The fact is they did make the complaint and they called the police and the date of the police occurrence is absolutely clear both in the police evidence and in the court records.

[52] In my view Mr. Paylor and Ms. Fredericks were honest witnesses doing their best to faithfully report what they saw and observed.

[53] It is noted that Mr. Paylor said that he had suffered a serious accident in the fall of 2012 and by his own estimation has some difficulty from time to time with organization of thoughts and memory. Nevertheless he was not shaken on cross examination on the essential points of his evidence. He was clear about what he saw and his evidence is consistent with the evidence of the other witnesses. For example he says that the woman living in the apartment was named Kristy and indeed the Health Card had the name Kristy on it. Both he and Ms. Fredericks heard noise in the neighbouring apartment and saw canned goods on their shelves fall. He asked Ms. Fredericks to call the police and she did. They testified that there had been a violent struggle in the apartment and the police found evidence of same.

[54] With respect to the photo ID being presented to Mr. Paylor and Ms. Fredericks for identification, I accept that the ability of a witness to identify a person simply from a single photograph is questionable. However this is not a person that Mr. Paylor and Ms. Fredericks saw one time only, but rather a person they had regular contact with in that Mr. Paylor saw her move in, they were her neighbours through to 2 April, and then subsequently have continued to be her neighbours all the way through to 13 June. This is a person they have continually seen. The chances of a misidentification in this instance are not realistic.

[55] Moreover the Crown's case is not restricted to the identification by Mr. Paylor from the Health Card. All of the other facts have to be taken into consideration. For example, the Health Card itself showing Kristy Hillier's name. Her receipt of it. The woman identified in the apartment by Mr. Paylor as the Kristy he had seen previously. Kristy Hillier being found a block and a half away within two hours. The fact that Kristy Hillier was seen with Mr. Paylor three days before.

[56] On the basis of all of this evidence, it is difficult to see how any conclusion other than that the woman identified by Mr. Paylor and Ms. Fredericks as Kristy and who was in the apartment at the time in question was in fact Kristy Hillier.

[57] In my view the Crown has proven beyond a reasonable doubt the identity of the woman in the apartment to be Kristy Hillier. It is the only reasonable inference to be drawn from the facts in evidence.

[58] The charges related to 2 April 2012 are therefore proven beyond a reasonable doubt.

Conclusion

[59] For the foregoing reasons there will be a finding of guilt on all charges.

Released: July 4, 2012

Signed: "Justice G.J. Brophy"