Court File and Parties

Ontario Court of Justice

Date: 2019-06-10

Court File No.: Hamilton 18-2977

Between:

Her Majesty the Queen

— and —

Kyle Wilson

Before: Justice J.P.P. Fiorucci

Heard on: February 1st, 2019 and March 13th, 2019

Reasons for Judgment released on: June 10th, 2019

Counsel:

• J. Vincelli, for the Crown
• V. Singh, for the defendant Kyle Wilson

FIORUCCI J.:

INTRODUCTION

[1] On April 4th, 2018, sometime after 11:00 p.m., Emily Sweeney called her sister, Caroline Sweeney. Emily was distraught and asked Caroline to pick her up at a convenience store. Emily also called 911 to report that she had been assaulted by her ex-boyfriend, Kyle Wilson. Emily and Caroline provided statements to the police.

[2] Kyle Wilson was charged with committing an assault upon Emily Sweeney, uttering a threat to cause death to her, and thereby failing to comply with a condition of a probation order which required him to keep the peace and be of good behaviour. Mr. Wilson was also charged with failing to comply with a condition of probation which prohibited him from having contact or communication with Emily Sweeney and requiring him to remain twenty metres away from her person.

[3] Mr. Wilson entered not guilty pleas to the four charges. The Crown called three witnesses: Emily Sweeney, Caroline Sweeney and P.C. Brian Stewart, the officer who was dispatched to the call. Mr. Wilson testified at the trial. He was the lone Defence witness.

[4] At the conclusion of the trial, the Defence conceded that Mr. Wilson must be found guilty of the Breach of Probation charge relating to having contact with, and being in the company of, Emily Sweeney on April 4th, 2018. I must decide whether Mr. Wilson is also guilty of the remaining charges from April 4th, 2018 of Assault, Uttering a Threat to Cause Death, and Breach of Probation for failing to keep the peace and be of good behaviour.

EVIDENCE

[5] Emily Sweeney testified that she met Mr. Wilson on Facebook around June of 2017. According to Ms. Sweeney, Mr. Wilson resided with her and her family for approximately a month and a half. Ms. Sweeney claimed that, sometime in October of 2017, Mr. Wilson stole items from her and her family, including her father's iPad, a camera and some jewelry.

[6] On April 4th, 2018, Mr. Wilson called Ms. Sweeney and told her that she could get the iPad and camera back if she gave him $700.00. Although she did not have the money, Ms. Sweeney agreed to meet with Mr. Wilson hoping that he would return the items once he saw her.

[7] Ms. Sweeney testified that Mr. Wilson arrived at her home with his friend "Matt", in Matt's mother's van. Matt then drove to his house on Lottridge Street in Hamilton, with Mr. Wilson sitting in the front passenger seat, and Ms. Sweeney sitting behind Mr. Wilson.

[8] Ms. Sweeney testified that five minutes into the fifteen to twenty minute drive to Matt's house, she told Mr. Wilson that she did not have the money. Mr. Wilson said nothing at that time.

[9] When they arrived at Matt's house on Lottridge Street, Ms. Sweeney got out of the van right away, as did Matt and Mr. Wilson. According to Ms. Sweeney, Mr. Wilson was very drunk and was mad that she did not have the money. About five seconds after Ms. Sweeney got out of the van, Mr. Wilson head-butted her. This happened at around 10:30 p.m.. Mr. Wilson was laughing at Ms. Sweeney, and saying it was funny that she thought she could get away with not paying him the money.

[10] Ms. Sweeney testified that the head-butt busted her lip open. Right after Mr. Wilson head-butted her, Ms. Sweeney was attempting to push him away from her, and broke three nails. According to Ms. Sweeney, Mr. Wilson was trying to drag her down with both of his arms on her shoulders. When she broke free and ran away from Mr. Wilson, Mr. Wilson said, "I'll kill you bitch if you call the cops".

[11] Ms. Sweeney ran to the nearest convenience store, seven blocks away. She testified that this was the normal place she would meet her sister, Caroline, when Caroline would pick her up. Ms. Sweeney used her cell phone to call Caroline. She asked her sister to pick her up at the convenience store. Emily also called 911. The 911 call was played at the trial, and made an exhibit.

[12] When Caroline Sweeney arrived at the convenience store, she found her sister, Emily, sitting in front of the store. Emily was very upset, crying, and was shaking. Caroline observed a cut near Emily's mouth; she described it as a bloody lip that was swollen. Caroline also saw a red mark on Emily's forehead. She also observed some of Emily's fingernails to be torn off; there was blood on Emily's fingernails.

[13] Caroline Sweeney testified that she lived with Emily at the time. On April 4th, 2018, Caroline came home from work at about 4:30 p.m.. When Caroline arrived home from work that day, Emily had already gone out. Caroline did not see Emily until she picked her up at the convenience store after receiving the call from her.

[14] Shortly after 11:30 p.m., P.C. Brian Stewart responded to the dispatch call regarding a domestic incident. When he arrived at the Big Bee convenience store, he met Caroline and Emily Sweeney. P.C. Stewart also observed Emily to be very distraught, very emotional, and very upset. The officer noted that she had swelling to her lip, with some fresh blood.

[15] Mr. Wilson testified and provided a very different version of what happened on April 4th, 2018. According to Mr. Wilson, the friend he was with that day was Mike Puzio, not a male named "Matt".

[16] Mr. Wilson denied that he contacted Ms. Sweeney to ask her for money for the return of items. According to Mr. Wilson, it was Ms. Sweeney who contacted him on Facebook that day wanting to drink and hang out with him.

[17] Mr. Wilson and Mike picked Ms. Sweeney up at her house between 3:30 and 4:00 p.m.. From there, the three of them stopped at a liquor store near Mike's house where Ms. Sweeney bought a bottle of Smirnoff vodka. The three of them then arrived at Mike's house on Lottridge Street at around 5:00 p.m..

[18] Mr. Wilson denied striking or head-butting Ms. Sweeney when they arrived at Mike's house. According to Mr. Wilson, the three of them went into Mike's house where they had some drinks. Mr. Wilson testified that Ms. Sweeney started drinking aggressively and taking her medications. Mr. Wilson estimated that he drank three to four mixed drinks.

[19] Mr. Wilson gave evidence that everything was fine until around 10:30 p.m. when an argument occurred. Ms. Sweeney went on Facebook and saw that Mr. Wilson's relationship status was "single" which made her angry. Mr. Wilson testified that Ms. Sweeney struck him in the face and then grabbed his shirt and ripped it. Mr. Wilson moved back and told her to "please get off". Ms. Sweeney was yelling and screaming. Mike's brother, who was also in the room, was telling Ms. Sweeney to get off of Mr. Wilson.

[20] At some point, Mike's mother came into the room. Ms. Sweeney stopped. Mr. Wilson testified that he and Mike then walked to Mr. Wilson's house, while Ms. Sweeney went her own way. Mr. Wilson could not offer an explanation for how Ms. Sweeney got marks on her face, but stated that she was very intoxicated and brought the rest of the bottle with her when she left. When Ms. Sweeney left, Mr. Wilson did not see any injuries to her forehead or her lip.

ANALYSIS

[21] The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.

[22] In this case, Mr. Wilson testified. I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:

(1) If I believe the testimony of the accused, I must find him not guilty;

(2) If I do not believe the accused's evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;

(3) Even if the accused's evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[23] I can accept all, some or none of a witness's evidence. A criminal trial is not an inquiry into what happened, or whose case is stronger. I must determine whether the Crown has proven the specific criminal allegations it has made beyond a reasonable doubt.

[24] Even if I were to prefer the complainant's narrative to the one offered by the accused, it does not resolve whether I have a reasonable doubt about the accused's guilt. There are other options requiring acquittal, including "the legitimate possibility" that I am unable to resolve the conflicting evidence and am accordingly left in a reasonable doubt.

[25] A criminal trial is not a "credibility contest". The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation.

[26] I will begin by considering Mr. Wilson's evidence. Firstly, I note that I had some concerns about Mr. Wilson's credibility as a witness. For instance, when discussing his prior convictions, I find that he attempted to minimize his involvement in prior criminal activity by attributing his convictions to bad advice he had received from his counsel (not Mr. Singh) to plead guilty to certain charges. He admitted in cross-examination that he had lied to the Court when he entered guilty pleas to charges for which he was factually innocent. Furthermore, at one point in the cross-examination, Mr. Wilson stated that he drank "a lot" on April 4th, 2018. He then denied that he said "a lot", but if he did say it, he attributed the words "a lot" to his speech impediment. I found Mr. Wilson to be less than forthright on this issue.

[27] Notwithstanding these concerns I have identified with respect to Mr. Wilson's testimony, I find that his evidence does leave me in a state of reasonable doubt when I consider the trial evidence as a whole.

[28] Mr. Wilson's testimony that he and his friend picked Ms. Sweeney up at her home in the afternoon, not later in the night as Ms. Sweeney claimed, accords with Caroline Sweeney's evidence that her sister had already gone out when Caroline arrived home from work at 4:30 p.m..

[29] Mr. Wilson's evidence that he and his friend picked Ms. Sweeney up because she had contacted him wanting to hang out and drink is plausible. It accords with what Ms. Sweeney told the 911 dispatcher – that she was going to meet Mr. Wilson because she thought "it would be okay" and "didn't think it would be that bad".

[30] Ms. Sweeney's account to the 911 dispatcher was internally inconsistent. At first, she told the dispatcher that she "ran into" Mr. Wilson and he beat her up by head-butting her and making her mouth bleed. She told the 911 operator that she was walking by Mr. Wilson's friend's house on Lottridge Street when Mr. Wilson came out of his friend's house and came after her. When asked by the 911 dispatcher why she was walking down Lottridge at that late hour, Ms. Sweeney told the dispatcher that she was going to meet Mr. Wilson.

[31] When questioned further by the dispatcher, Ms. Sweeney stated that she had been picked up by Mr. Wilson and his friend. Ms. Sweeney claimed that the inconsistencies in her account to the 911 operator were caused by her emotional state at the time—she was delirious because she had just been head-butted by Mr. Wilson. However, it is difficult to understand how or why Ms. Sweeney would initially provide two wholly inconsistent versions of how she came into contact with Mr. Wilson that night—one in which she was just walking by and one in which she was going to meet Mr. Wilson.

[32] Ultimately, Ms. Sweeney and Mr. Wilson gave consistent evidence that Mr. Wilson and his friend picked her up at her house. However, the fact that Ms. Sweeney gave varying accounts to the 911 operator as to how she arrived at the Lottridge Street address is troublesome and calls into question the credibility and reliability of her evidence on other matters. I find that it is unsafe to rely on the evidence of a witness who is careless with the truth.

[33] Mr. Wilson gave evidence that he and Ms. Sweeney were together on April 4th, 2018 because Ms. Sweeney wanted to spend time with him. At no point in the 911 call did Ms. Sweeney say that she had been picked up by Mr. Wilson and his friend because Mr. Wilson was demanding money for the return of items he had taken.

[34] Mr. Wilson denied assaulting Ms. Sweeney and denied that the argument was about her not having money that he had asked for. He provided a version of events in which Ms. Sweeney drank alcohol with him and his friend throughout the afternoon, followed by an argument about his Facebook relationship status, which turned physical. Mr. Wilson testified that Ms. Sweeney was the aggressor and attacked him. I am left unsure whether Mr. Wilson's evidence which is inconsistent with guilt is true, especially in light of the concerns I have identified with respect to the reliability of Ms. Sweeney's evidence.

[35] In arriving at the conclusion that the Crown has not proven the charges beyond a reasonable doubt, I have considered the fact that both Caroline Sweeney and P.C. Stewart observed injuries to the complainant's lip and other injuries consistent with her evidence of having been assaulted by Mr. Wilson. Those independent observations of the injuries are not sufficient to overcome the concerns I have with Ms. Sweeney's evidence and my inability to resolve the conflicting evidence as to how the altercation between Mr. Wilson and Ms. Sweeney occurred.

[36] A physical altercation probably occurred between Ms. Sweeney and Mr. Wilson which resulted in the injuries observed by Caroline Sweeney and P.C. Brian Stewart. However, on the evidence before me I am unable to find beyond a reasonable doubt that Mr. Wilson assaulted Ms. Sweeney and uttered the threat as alleged by Ms. Sweeney.

[37] Mr. Wilson is found not guilty of the charges of Assault, Uttering a Threat to Cause Death and Failing to comply with the condition of his probation requiring him to keep the peace and be of good behaviour. Mr. Wilson is found guilty of the charge of Failing to comply with the condition of his probation which prohibited him from having contact or communication with Emily Sweeney and required him to remain twenty metres away from her person.

Released: June 10, 2019

Signed: Justice J.P.P. Fiorucci