ONTARIO COURT OF JUSTICE

DATE: 2023 08 01 COURT FILE No.: 20-45001516 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Kenton LEE-DIGGS

Before: Justice Cidalia Faria

Heard on: September 7, 8, 2021, December 5, 6, 13, 2022, March 13, May 23, 2023

Reasons for Judgment released on: August 1, 2023

Counsel: Barry Stagg, Henry Poon ................................................................. counsel for the Crown Raj Vijan [1], Jamie Kopman, Cole Perry .. counsel for defendant Kenton LEE-DIGGS

Faria J.:

I. Overview

[1] On April 30, 2020, Kenton Lee-Diggs was charged with impaired driving, refusing to provide a breath sample into an approved screening device, mischief under $5000 and cruelty to animals contrary to ss. 320.14(1)(a), 320.15(1), 430(4) and 445(1)(a) of the Criminal Code.

[2] On April 30, 2020, police received a 911 call regarding a male who had allegedly killed a cat. The complainant informed police of what had occurred, provided a description of the male, the vehicle he was driving, and the direction he drove away. An officer located Mr. Lee-Diggs and pulled him over. The officer called for back up and made observations that Mr. Lee-Diggs was impaired by alcohol. Fellow officers attended the scene. They made further observations at the roadside and arrested Mr. Lee-Diggs for impaired driving and cruelty to animals. An officer transported Mr. Lee-Diggs to a police station, they waited to enter the station and after being paraded, while in an interview room, Mr. Lee-Diggs was observed via CCTV to purposely urinate on the floor. When taken to the Breath Technician, it is alleged he refused to provide a breath sample.

[3] The trial commenced on September 7, 2021, with the evidence of the complainant, the owner of the kitten involved in the allegation. The trial then paused for the evidence of five officers on a Charter voir dire alleging violations of Mr. Lee-Diggs’ s. 7 and 10(b) rights regarding the charges of impaired driving, refusing to provide a breath sample, and mischief. Mr. Lee-Diggs was seeking the exclusion of evidence regarding those three charges as a remedy to the violations.

[4] On March 13, 2023, I provided oral reasons dismissing the application. Written reasons were provided on March 17, 2023, R. v. Lee-Diggs, 2023 ONCJ 347.

[5] Mr. Lee-Diggs did not testify at the Charter voir dire nor at the trial.

II. Admissions

[6] Date, identity, and jurisdiction were admitted at the beginning of the trial.

[7] After the Charter decision, the parties agreed the evidence of the five officers, the exhibits filed, and the findings of the Charter voir dire were admitted as evidence at the trial proper.

[8] The Defence then conceded that the Crown had proven both the charges of impaired driving and mischief under beyond a reasonable doubt.

III. Issue

[9] Only two charges of the four are at issue. To be determined is:

i. Has the Crown proven beyond a reasonable doubt that Kenton Lee-Diggs killed Cedar Johnson-Nelson’s kitten? ii. Was a demand to provide a suitable sample of breath into an Approved Screening Device (ASD) ever made of Mr. Lee-Diggs for him to refuse to comply?

IV. Position of the Parties

[10] The Crown submitted Ms. Johnson-Nelson’s testimony was reliable and credible. He submitted it should be accepted and the cruelty to animals count has been proven beyond a reasonable doubt.

[11] On the refuse to provide a proper sample of his breath, the Crown submitted Officer Pogue made a legal demand for Mr. Lee-Diggs’ breath, and as observed on the video filed as an exhibit, Mr. Lee-Diggs refused to provide the sample into the approved instrument.

[12] The Defence submitted the Crown has proven neither charge. On the first count, cruelty to animals, because Ms. Johnson-Nelson was inconsistent, and thus her evidence was unreliable, not credible and should be rejected.

[13] On the second count, Defence submits there is no evidence that a demand for Mr. Lee-Diggs to provide a suitable sample into an ASD was ever made.

V. Legal Principles

i. Legislation

[14] The relevant Criminal Code provisions are as follows:

445 (1) Everyone commits an offence who, wilfully and without lawful excuse (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are kept for a lawful purpose; or

320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug: (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable, (a) require the person to provide, as soon as practicable, (i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

ii. General principles

[15] As in every criminal case, Mr. Lee-Diggs is presumed innocent. The onus rests on the Crown to prove the essential elements of each offence beyond a reasonable doubt. The onus never shifts. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. [2]

[16] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she/he/they believes it to be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall, and recount the events must be assessed. A credible witness may give unreliable evidence [3]. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt [4]. The credibility and reliability of a witness must be “tested in the light of all the other evidence presented. [5]

[17] In assessing each witness’ testimonial account, I must consider its internal consistency; its consistency with previous accounts; the significance of any inconsistencies; a witnesses’ interest in the outcome of the case if any; and whether an account is inherently logical.

[18] To assess reliability, I must consider the circumstances of the observer, the recollection of events over time, the intentional or unintentional tainting by other sources of information; a witness’ mental capabilities and limitations if any; their level of sophistication, and to a lesser degree the witness’ testimonial demeanor to name a few.

[19] Inconsistencies must be addressed. They vary in their nature and importance. Some inconsistencies are minor, others are not. Some concern material issues, others are peripheral. The job of the trier of fact is to assess the reliability of a witness’ evidence given all the evidence presented. [6]

[20] As I assess the evidence, I am mindful I may accept some, none, or all, of each witness’ account, and I must consider the totality of the evidence to determine if each element of each offence is proven beyond a reasonable doubt, and in its totally the charge has been so proven.

VI. Evidence Summary

i. Cruelty to animals

[21] Between 7:00 and 8:00 a.m. the morning of April 30, 2020, Ms. Johnson-Nelson testified she met Mr. Lee-Diggs at a gas station near her home in Toronto. She had gone to get gas and meet someone to pick up a sweater around 7 or 8 in the morning. While there, she asked people she met if they wanted a kitten as her cat had had an unexpected litter. Everyone said they were not interested, except Mr. Lee-Diggs, who was there buying cigarettes, and said he was interested in the kittens.

[22] Ms. Johnson-Nelson testified she drove home while Mr. Lee-Diggs followed her. Once at her triplex, they entered her basement apartment and went to her bedroom. This is where the mother cat had had her litter in the closet. The mother cat and five kittens had the run of the house but were primarily in her bedroom.

[23] Mr. Lee-Diggs stood by the bedroom door, and they spoke about the kittens. He said the kittens “were so pure”. She thought he was talking about how they were new life, and they were “pure souls” so she helped him articulate this thought.

[24] As she was fussing about picking things up off the bedroom floor, Ms. Johnson-Nelson testified Mr. Lee-Diggs picked up a kitten. She observed him to have his hand around the kitten’s neck, squeezing and dangling the kitten.

[25] She testified she said, “You’re hurting the cat,” “you’re killing the cat” because, in her words, “I could hear the cat starting to gurgle and kind of just like, let out a cry. And then, he took his other hand and snapped its neck. And he was still holding the cat.”

[26] She testified she was in shock and said to Mr. Lee-Diggs “put the cat down”, “let’s go outside an have a cigarette” as she wanted him out of her house.

[27] Ms. Johnson-Nelson described Mr. Lee-Diggs as staring at her with “no emotion whatsoever”, it was “a dead, cold stare”. He then “just threw the cat down on the floor by my feet and proceeded to walk out”.

[28] Mr. Lee-Diggs then seemed to be in a rush to get out of the apartment. He tried the doors of a back room, her daughter’s room and finally the back door. When he saw it was an exit, he went up the stairs and left the apartment. She locked the door behind him and called 911 as she walked to the main door of her triplex. She saw Mr. Lee-Diggs looking at her through one of the windows while she was speaking to the 911 operator. He yelled at her “what are you doing”. She pretended to be getting something from a neighbour while feeling “frantic”.

[29] She provided a statement to police when they arrived at her home and identified 30 photographs taken of her apartment, her bedroom and the dead kitten taken by an officer and filed as exhibits by the prosecution.

[30] During cross-examination, Ms. Johnson-Nelson testified:

• Mr. Lee-Diggs “flirted” with her and asked if she had a boyfriend while at the gas station.
• Mr. Lee-Diggs got into the front passenger seat of her vehicle, and they discussed the cats while she waited for her friend from whom she was getting her sweater.
• She would have gladly sold a cat and taken money but would have given the kitten away for free as well.
• She talked to Mr. Lee-Diggs about the age, colour, gender, and vaccination status of the kittens, as well as the fact they were being litter trained.
• She took Mr. Lee-Diggs directly to her bedroom to see the kittens, they had not even taken their shoes off. He was in her apartment for only 4 to 5 minutes, maybe 7 minutes at the most.

[31] It was suggested to Ms. Johnson-Nelson that she discussed marijuana with Mr. Lee-Diggs when she met him. She responded she may have asked him if he was high.

[32] The theory of the defence was put to her that:

• She bought cocaine from her friend.
• She took Mr. Lee-Diggs to her apartment to sell him marijuana.
• When Mr. Lee-Diggs entered her bedroom, the kitten was already dead.
• Between calling 911 and the police arriving, she cleaned needles, crack pipes and drug paraphernalia from her apartment floor.
• She had gone back into the bedroom after Mr. Lee-Diggs left and moved or touched the dead kitten.
• A small bag containing what looked like pills or tic tacs on the spot on her bed where Mr. Lee-Diggs had sat was hers.

[33] Ms. Johnson-Nelson repeatedly and emphatically responded “no” and “absolutely not” to each of these suggestions.

ii. Refuse to provide breath sample

[34] After receiving information alleging cruelty to an animal incident and a description of a motor vehicle, Officer Avishar Judah went to the area the vehicle was last seen to investigate. He testified he located Mr. Lee-Diggs whose vehicle matched the description and pulled him over. Mr. Lee-Diggs was immediately aggressive and belligerent. He observed Mr. Lee-Diggs to have very red eyes, slurred speech, and be unsteady on his feet. He also smelled an odour of alcohol. He called for back up.

[35] Once Officer Matthew Galloway attended, both officers proceeded to arrest Mr. Lee-Diggs for impaired driving and cruelty to animals. He was provided his right to counsel and told numerous times why he was arrested. It took 4 officers and just over 20 minutes to get Mr. Lee-Diggs into the scout car. Officer Judah testified he did not make an ASD demand at the roadside.

[36] Once inside the scout car, Officer Galloway testified that he made a demand at 8:08 a.m. that Mr. Lee-Diggs accompany him to provide a sample of his breath into an approved instrument. He repeated the same demand at 8:29 a.m.

[37] Sergeant Shiraz Arshad attended the scene to assist Officers Judah and Galloway. When he arrived, he testified that the “roadside was not needed. Just looking at the gentleman, I was able to tell that there was, he was under the influence of alcohol, meaning this would have been an impaired arrest, not a roadside screening, which is a different demand.” He made the same demand of Mr. Lee-Diggs as Officer Galloway did, to accompany him to provide a breath sample into an approved instrument at the station.

[38] Once at the station, Mr. Lee-Diggs was paraded before Officer Ramesh Parsram. He made no breath demand of Mr. Lee-Diggs.

[39] In the breath room, Qualified Breath Technician, Officer Eric Poge testified that pursuant to Officer Galloway’s lawful demand to provide a breath sample into an approved instrument, he attempted to obtain a suitable sample from Mr. Lee-Diggs. He repeated the same demand himself and explained the consequences of not providing a suitable sample of breath into the approved instrument, the Intoxilyzer 8000c.

[40] Mr. Lee-Diggs is observed on video refusing to provide a suitable sample of his breath into the approved instrument.

VII. Analysis

i. Cruelty to animals charge

[41] Ms. Johnson-Nelson described the killing of the kitten in minute detail, including the sounds she heard the kitten make, the motions the kitten made with its front paws and hind legs, what it did with its mouth, and how it had its eyes open. She testified to exactly where Mr. Lee-Diggs’ hands were on the kitten’s neck and described how he snapped it.

[42] Her testimony was vivid and potent. She was unshaken.

[43] Counsel submitted Ms. Johnson-Nelson described Mr. Lee-Diggs “threw” the kitten, but also said, he “tossed” and “dropped” the kitten which amounts to an inconsistency. It does not. She testified “like a toss, like, he just threw his – put his – had the cat in his hand, pushed his hand forward, opened his hands and let the cat go” as she demonstrated the motion to the court. “Threw”, “tossed”, and “dropped” are all accurate descriptors of the motion she made. The photos also corroborated the location of where Ms. Johnson-Nelson testified she was standing, where Mr. Lee-Diggs’ was standing, and where the kitten landed within the small space of her bedroom.

[44] She admitted she did not see Mr. Lee-Diggs pick up the kitten. She was not sure which hand Mr. Lee-Diggs used to hold the kitten, and which hand he used to snap its neck. She demonstrated the actions she observed to the court and took care to say that she is right-handed but could not recall if Mr. Lee-Diggs is.

[45] She was asked if she entered the room after the killing of kitten and testified she had not. The other kittens came in and were around the dead kitten, including the mother cat who sniffed and pawed at it. She left the room after Mr. Lee-Diggs, and “couldn’t bear to see that.”

[46] When a photo of toilet paper on the hind legs of the dead kitten was put to her, she testified she did not know how that happened. She guessed the kittens or mother cat did it as she saw the mother cat and kittens come into the room and go to the dead kitten. There were long strips of toilet paper strewn on the floor of the bedroom. She also ventured to say an officer may have covered the kitten. In either instance, Ms. Johnson-Nelson said she did not see it happen. She was guessing and said so. This did not detract from her minutely detailed testimony of what she testified she did see and hear.

[47] The suggestion Ms. Johnson-Nelson hid drug paraphernalia was denied and unsupported by any evidence. She guessed that a small item on her bed where Mr. Lee-Diggs sat down looked like it contained pills or tic tacs. Either way, she testified she did not know what it was, and it was not hers. Regardless, this item is unrelated to the charge, and I accept her evidence on the point.

[48] Ms. Johnson-Nelson’s evidence was clear, consistent, coherent, detailed, uncontradicted and unshaken. She was reliable, and credible. I accept her evidence that Mr. Lee-Diggs killed her kitten in front of her.

ii. Refuse to Provide

[49] The Information on which Mr. Lee-Diggs was arraigned reads:

“On or about the 30th day of April in the year 2020 at the City of Toronto in the Toronto Region did, without reasonable excuse fail to comply with a demand made to them by a peace officer to accompany that officer to provide such a sample of his breath as was necessary to enable a proper analysis to be made by means of an approved screening device, contrary to section 320.15, subsection (1) of the Criminal Code of Canada.” (Emphasis added).

[50] None of the officers: Officer Judah, Officer Galloway, Officer Arshad, Officer Parsram, and Officer Poge made a demand of Mr. Lee-Diggs to provide a suitable sample into an approved screening device.

[51] As the ASD demand was never made, Mr. Lee-Diggs never refused to comply with an ASD demand as charged. He refused to comply with a different demand. One he was not charged with.

VIII. Conclusion

[52] As conceded, on the counts of Impaired Driving and Mischief Under, I find Mr. Lee-Diggs guilty.

[53] On the count of Cruelty to Animals, I find Mr. Lee-Diggs guilty.

[54] On the count of Refuse to Provide a breath sample into on approved screening device, I find Mr. Lee-Diggs not guilty.

Released: August 1, 2023 Signed: Justice Cidalia C.G. Faria

[1] Counsel Mr. Raj Vijan passed away in November 2021. He was a well-respected lawyer and will be missed. Counsel Jamie Kopman took on the matter but became ill and continuing trial dates in March 2022 were vacated. Counsel Cole Perry then proceeded with the Charter voir dire and the trial in December 2022.

[2] R. v. Lifchus, [1997] 3 S.C.R. 320.

[3] R. v. Morrissey, [1995] O.J. No. 639 (C.A.) at para 33; R v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at para 41.

[4] R. v. J.J.R.D., 2006 ONCA 888, [2006] O.J. No. 4749 (C.A.) at para 47; R. v. J.W., [2014] O.J. No. 1979 (C.A.) at para 26.

[5] R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para 27.

[6] R. v. Francois, [1994] 2 S.C.R. 827 (S.C.C.) at para. 14.