DATE: June 27, 2024 ONTARIO COURT OF JUSTICE Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

MIGUEL DYER

For the Crown: D. Parry For the Defendant: J. Rabinovich Heard: June 26, 2024

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Dyer is Charged with (1) threatening death, (2) assault with a weapon, and (3) breach of probation.

[2] The charges arise out of an altercation between Mr. Dyer and a man named Dee Troyit that took place on November 9, 2022, in Parkdale, in the City of Toronto.

[3] The Crown called two witnesses: Mr. Troyit and an independent eyewitness named Brandi Quirk. The Crown also filed some photographs of both the scene and injuries to Mr. Troyit. A silent video showing Mr. Dyer’s arrest was also filed.

[4] Mr. Dyer testified and called no other witnesses.

[5] Mr. Dyer admitted that at the time of the altercation he was bound by a probation order that forbade him from possessing any weapons.

[6] Mr. Dyer and Mr. Troyit knew each other. In fact, Mr. Dyer had, in November 2020, pleaded guilty to assaulting Mr. Troyit with a hammer six months earlier.

[7] It is common ground that on November 9, 2022, Mr. Dyer and Mr. Troyit became involved in a physical fight. According to Mr. Troyit, he was minding his own business chatting with friends when Mr. Dyer came on scene and attacked Mr. Troyit, striking him in the head with some sort of metal object. According to Mr. Dyer, it was Mr. Troyit who attacked him, forcing him to defend himself.

[8] There are three central issues in this case: Has the Crown proved beyond a reasonable doubt that (1) Mr. Dyer struck Mr. Troyit with a weapon, (2) if so, that Mr. Dyer was not acting in lawful self-defence when he did so, and (3) did Mr. Dyer threaten death to Mr. Troyit.

B. THE EVIDENCE

(a) The testimony of Brandi Quirk

[9] On the afternoon in question, Ms. Quirk was visiting the Salvation Army outlet on Queen Street in Parkdale. While she was loading some items into the back of her car, she heard angry shouting from a tall black man as he approached Mr. Troyit, who was astride his bicycle approximately 5-7 feet away from Ms. Quirk. The approaching man was yelling “I’ve been looking for you”… “this is happening because you spoke to the cops”. He was also shouting something about shooting Mr. Troyit and “knowing people in Detroit”.

[10] Ms. Quirk did not know nor recognize either man.

[11] When the approaching man reached Mr. Troyit, he struck him in the head with his left hand or fist. Ms. Quirk did not see anything in the approaching man’s hand.

[12] It took a while for Mr. Troyit to get off his bike but once he did, he began to fight back. It appeared to Ms. Quirk that Mr. Troyit was trying to defend himself.

[13] As the fight continued both men fell to the ground beside her car. Mr. Troyit was bleeding. Mr. Troyit ended up on top of his assailant. Mr. Troyit got off his assailant and moved away. It was then apparent to Ms. Quirk that the other man still on the ground (who, it is admitted was Mr. Dyer) was injured. Ms. Quirk offered to call someone for him and offered him some assistance, all of which he refused. Mr. Dyer, who seemed, as she put it, “a bit out of it” then crossed the street where he remained for 30 – 60 seconds before slowly going down a nearby side street.

[14] Ms. Quirk did not see a weapon on the ground after the fight, although she was not looking for one.

(b) The testimony of Dee Troyit

[15] Mr. Troyit has lived in Parkdale for 30 years. He has known Mr. Dyer since 2018 or 2019.

[16] In May of 2020, Mr. Dyer attacked Mr. Troyit with a hammer while seeming to be going after Mr. Troyit’s bike.

[17] Mr. Dyer seemed to disappear from the neighbourhood for a while but then came back. Mr. Dyer had seen him often after his return.

[18] On November 9, 2022, Mr. Troyit was standing astride his bike when Mr. Dyer angrily ran at him calling him a “fag” and saying: “you’re going to die right now”. Mr. Dyer appeared “crazy”.

[19] Mr. Troyit managed to get off his bike just before he was struck in the head by Mr. Dyer. He did not see anything in Mr. Dyer’s hands, but he felt himself struck in the head with some sort of object.

[20] Mr. Troyit struck back, and a fight ensued. Eventually Mr. Dyer stopped striking out at Mr. Troyit yet the latter continued to punch Mr. Dyer until he went down, and even briefly thereafter. Mr. Troyit asked Mr. Dyer if they were done and walked away after seeing a metal object in Mr. Dyer’s hand. Mr. Dyer then got up, moved away and told Mr. Troyit: “you’re dead”.

[21] Mr. Troyit was bleeding profusely from his head.

(c) The video evidence

[22] The body-worn camera of one of the arresting officers shows that Mr. Dyer was arrested at his apartment at approximately 14:47 hours. It was an admitted fact that the altercation in question took place a few minutes before 14:00 hours, at least 45 minutes earlier.

(d) The testimony of Mr. Dyer

[23] Mr. Dyer is 50 years old. He is a landed immigrant from Jamaica. He has a criminal record stretching from 2006 to 2021 for two counts of assault with a weapon, robbery, and assault.

[24] On November 9, 2022, he was searching for some money that he had lost on Queen Street near the Salvation Army when he was suddenly attacked by Mr. Troyit who started swinging at him while threatening to kill him. Mr. Dyer attempted to defend himself by swinging back. He had a lighter in one of his hands.

[25] Mr. Dyer ended up on the ground with a concussion and broken teeth.

[26] He denied that he was angry at Mr. Troyit for calling the police and “sending him to jail” in connection with his earlier assault on Mr. Troyit with a hammer.

[27] According to Mr. Dyer he did not want the police called at the scene for fear that Mr. Troyit’s friends would lie to the police about what had occurred. He implied that he was going to call them once he got home (which was only two or three minutes away), but never had the opportunity because the police arrived almost immediately after his arrival at home.

C. ISSUES AND ANALYSIS

(a) Introduction

[28] This case turns almost entirely on the credibility and reliability of the three witnesses.

[29] Because Mr. Dyer testified and denied assaulting Mr. Troyit, I must approach the evidence as follows: if I believe Mr. Dyer’s testimony, I must of course find him not guilty. Even if I am not convinced by his testimony, it may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the criminal allegations beyond a reasonable doubt. If it does not, the accused must be acquitted. If it does, he must be found guilty. R. v. W.D., [1991] S.C.J. No. 26.

(b) The position of the parties

[30] Mr. Parry for the Crown argues that I should entirely reject the testimony of Mr. Dyer. He points out that the testimony of Ms. Quirk, an independent witness is overwhelmingly reliable and completely at odds with that of Mr. Dyer. He further points out that Mr. Dyer’s explanation for why he did not call 911 is refuted by the fact that the police did not arrive at his home until 45 minutes after the fight.

[31] As for Ms. Quirk’s version of what Mr. Dyer said as he approached Mr. Troyit, it is strongly corroborated by Mr. Dyer’s 2020 guilty plea to assault with a weapon on Mr. Troyit. Furthermore, the fact that Mr. Troyit complained to police about the 2020 assault, causing Mr. Dyer to spend time in custody is evidence of motive on Mr. Dyer’s part.

[32] Mr. Parry further argues that Mr. Troyit’s testimony ought to be accepted. It is corroborated by Ms. Quirk’s evidence and the significant bleeding from his head. Any inconsistencies between Mr. Troyit’s and Ms. Quirk’s testimony are insignificant and are to be expected in the context of a sudden melee where Mr. Troyit was under attack and Ms. Quirk was feeling apprehensive as a fight erupted very close to her.

[33] Mr. Parry also suggested that Mr. Dyer’s after the fact conduct can be characterized as flight and thus consciousness of guilt.

[34] Mr. Rabinovich argues that the testimony of Mr. Dyer at least raises a reasonable doubt.

[35] He argues that Ms. Quirk’s evidence is suspect. Not only did she not report Mr. Dyer’s significant Jamaican accent, but it may also indeed have confused her as to who said what, and when.

[36] He points out that Mr. Dyer’s evidence as to his concussion was not challenged and that it amply explains Mr. Dyer’s failure to call 911 and his confusion as to how much time had passed between him getting home and the arrival of the police at his home.

[37] He further argues that the prior guilty plea is of little weight as concerns motive since Mr. Dyer, according to his unchallenged testimony on this point, was in custody at the time on other charges.

[38] He further argues that in the absence of expert testimony I cannot consider the significant bleeding from Mr. Troyit’s head as confirmatory of the use of a weapon.

(c) Analysis

[39] I begin by ruling as to the limited use of Mr. Dyer’s 2020 guilty plea to attacking Mr. Troyit with a hammer. I rely on this evidence as relevant only to motive and as possibly corroborating Ms. Quirk’s evidence as to what she heard Mr. Dyer say prior to the fight. I do not rely on the prior incident as evidence of Mr. Dyer’s propensity for violence nor as similar act evidence making Mr. Troyit’s testimony more likely true.

[40] As concerns Mr. Dyer’s testimony, I do not accept it, nor does it raise a reasonable doubt. I reject it largely for the reasons cited by Mr. Parry in his argument as referenced above, although I reject his submissions concerning Mr. Dyer’s so-called “flight” from the scene.

[41] I accept the thrust of Ms. Quirk’s cogent, careful and unbiased testimony to the effect that Mr. Dyer was the aggressor, and that Mr. Dyer uttered the words she says she heard. I also accept the thrust of Mr. Troyit’s measured account to the effect that he was attacked and merely defended himself. The fact that he did not hear what Ms. Quirk heard and vice versa doesn’t mean those words weren’t spoken.

[42] The discrepancy between Ms. Quirk’s and Mr. Troyit’s testimony concerning whether Mr. Troyit was on or off his bike when first struck is of no moment.

[43] The testimony of Mr. Troyit and the significant bleeding from his head lead me to find as a fact that Mr. Dyer did indeed assault Mr. Troyit with some sort of metal weapon.

D. CONCLUSION

[44] I find Mr. Dyer guilty as charged on all three counts.

Released on June 27, 2024 Justice Russell Silverstein