Court File and Parties

Court File No.: Toronto Region

Date: 2018-05-14

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

William Nolan

Before: Justice L. Feldman

Heard on: June 19, July 28, November 15, 2017, April 5, 2018

Reasons for Judgment released on: May 14, 2018

Counsel:

• D. Kennedy, L. Eplett for the Crown
• D. Gosbee for the accused William Nolan

FELDMAN J.:

Overview of Charges

[1] William Nolan entered not guilty pleas to charges of Threaten Death, Intimidation, Obstruct Justice, Disobey Court Order and Criminal Harassment. It is alleged that he committed these offences in the course of pressuring his estranged spouse, Lornah Kim, to submit to his demands over custody of and access to their two young children.

The Allegations

[2] On the latter charge, it is alleged that on January 7, 2015, the defendant scattered numerous topless photographs of an Asian woman performing oral sex on a penis in the field attached to the public school where the complainant worked. Ms. Kim believes the face in the photograph is hers, but is not sure. Of significance, a note on each photo reads, "this is your junior kindergarten teacher, Lornah Kim, this will keep happening as long as she is at TDSB". Although not an overwhelming case, the circumstantial evidence permits the inference that it was Mr. Nolan who orchestrated this act of personal destruction.

[3] It is also alleged that the defendant threatened to harm their children and kill Ms. Kim's family were she not to agree to joint custody of the children in family court. There is evidence he exhibited an intimidating presence throughout that proceeding.

[4] Subsequently, in similar vein, a rock was thrown through a window in the home of the parents of one of the complainant's friends that was wrapped in paper upon which was written a threat to "fix" things or her parents would be shot. This threat was presumably in relation to the defendant requiring more favourable access to the children. Ms. Kim says she recognized the defendant's handwriting on the attached note. It is open to be circumstantially inferred that it was Mr. Nolan who delivered this threat.

Prior Discreditable Conduct Application

[5] The Crown applies to have evidence of prior discreditable conduct admitted into evidence arising from facts admitted by the accused in guilty pleas to charges of Criminal Harassment and Intimidation before Otter J. on November 15, 2012.

[6] The admitted facts include the following: Mr. Nolan was absent from his children's lives for a considerable time while he was in custody. Sometime after his release, on September 23, 2012, he confronted Ms. Kim outside a spa where he yelled at her in front of the children. The complainant says he called her a slut, a bitch and asked his sons if they had seen her with any black guys. She told the court he said that she "better stop fucking around", that he was going to destroy her life as she destroyed his, that she was going to pay for this, that he was going to photoshop pictures of her getting gangbanged by 5 black guys and that he intended to put those photos at her place of employment, the kids' school and her gym. He then followed her to a butcher shop and afterwards to a police station to which she drove because she felt unsafe.

[7] Later that day, Ms. Kim was having dinner with her sons at her sister's home, when the defendant knocked on the front door, yelling, "open the fucking door. I will fucking kick it in". He barged in and began yelling at his kids to pack their things. The complainant's sister called the police. Of significance, the defendant said to Ms. Kim, "tomorrow's the day you will see what will happen". The complainant went to the police station to report the incident. Mr. Nolan followed her in to the station and began yelling at her in the lobby before being escorted outside.

[8] The next day, September 24, while she was teaching at school, Ms. Kim's principal advised her that there were multiple nude photos of her scattered all over the schoolyard. Her name and phone number were printed on it. The complainant told the court it was a photograph she had sent to the accused when he was in prison. She called the police. Mr. Nolan was charged with criminal harassment. Ms. Kim testified that the defendant admitted to her that he was responsible for dissemination of the photos at her place of work. The charge was later withdrawn.

[9] On October 2nd, Mr. Nolan called the complainant and demanded she lift this harassment charge or he would attend her mother's home where "the shit would hit the fan". On the last of five calls, he told her he was on his way to find her. She immediately went to 43 Division.

[10] Although not proceeded with before Otter J., the criminal harassment allegations bore a striking similarity in nature and context to the one before this court. It was an egregious act of cruelty for failure by the complainant to be compliant over access following other incidents of abuse, threats and intimidation.

[11] The Crown submits that that this bad character evidence is probative more than prejudicial of a number of material issues, including motive, identification and credibility of the complainant, and that it should be admitted. The defence submits that this disposition evidence is weak, insufficiently distinctive and more prejudicial than probative of material issues in this trial.

Prior Discreditable Conduct

[12] Bad character evidence, or propensity, are only exceptionally admissible. In R v. Moo, 2009 ONCA 645, Watt J.A. said, at para. 97, that despite the general rule excluding character evidence as circumstantial proof of guilt, the courts recognize that, "sometimes, evidence of prior misconduct, which tends to show bad character, may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse". In effect, does the probative value of the proposed evidence outweigh its prejudicial effect?: R. v. Arp, at para 41.

[13] On this evidence, it is for the Crown to identify the live issue or issues in the trial to which the prior misconduct is said to relate, to explain their cogency in relation to the inferences sought to be drawn and to assert the strength of the proof of the similar facts: R. v. Handy, at paras. 74 and 80.

[14] Given a history of relationship breakdown and conflict, issues of relevance in this case include motive and animus. In addition, in light of questions raised as to the perpetrator of the schoolyard incidents, questions of identity and credibility are material facts in issue.

[15] In R. v. Johnson, 2010 ONCA 646, Rouleau J.A. explained, at para. 101, that "evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which generally helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence".

[16] In this regard, in relation to the 2015 criminal harassment allegations, the scattering of nude photos of the complainant in the schoolyard in 2012 indicates facts that are, in my view, distinctly similar in nature and detail. They reflect acts rooted in cruelty that permit the inference they were aimed at humiliating Ms. Kim and punishing her for failure to be compliant over access.

[17] I would not take the same position with regard to the other earlier admitted criminal misconduct. In 2012, over the issue of access, Mr. Nolan was derogatory, confrontational and intimidating. In threatening to destroy the complainant's life, he displayed animus. Although similar in nature to the 2015 allegations, these facts were not proximate in time, similar in detail, nor did they have distinctive features that served to elevate their probative value over the prejudicial effect of propensity evidence: Handy, at para. 82. Although a close case, I would not admit those facts as prior discreditable conduct.

[18] By contrast, the 2012 schoolyard incident is strikingly similar in detail and the circumstantial evidence pointing to the accused as perpetrator strong. I accept the evidence that the complainant sent a nude photo of herself to the defendant while he was incarcerated, that following his release he was angry over lack of access, that he told Ms. Kim of his intent to destroy her life and that he admitted responsibility for the dissemination of the photos.

[19] This evidence permits the inference that in perpetrating these distinctive acts, the defendant was motivated each time by an intent to humiliate Ms. Kim and threaten her livelihood. As well, this evidence tends to enhance the complainant's testimonial credibility on the material facts in issue.

[20] I am persuaded on a balance of probabilities that the cogency of this evidence, its unique facts and relevance to the nature of the relationship and the defendant's animus support its threshold admission as prior discreditable conduct. Its probative value is high. It is ultimately to be weighed with all other evidence for its limited purpose on a reasonable doubt standard.

Released: May 14, 2018

Signed: Justice L. Feldman