COURT FILE NO.: SCA(P) 302/14 DATE: 2016-08-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – BRIAN DIXON

S. Doyle, for the Crown, Respondent N. Rozier, for the Appellant

HEARD: March 11, 2016

SUMMARY CONVICTION APPEAL

REASONS FOR JUDGMENT

Gibson J.

Reasons for Judgment

1The Appellant Mr. Brian Dixon was convicted following a trial by Maresca J. on March 7, 2014 of eleven charges arising from a dispute with his neighbours: three counts of criminal harassment, three counts of uttering death threats, two counts of assault with a weapon, two counts of mischief and one count of breach of a recognizance. On April 28, 2014, Justice Maresca sentenced the Appellant to 18 months in custody in addition to 33 days pre-trial custody, plus a period of probation for three years. The Appellant appeals both his conviction and the sentence.

2The Crown concedes that the trial judge erred by imposing two 18 month concurrent sentences in addition to time served, (thus, 18 months and 33 days) thereby exceeding the maximum allowable sentence on conviction for the summary conviction offences of assault with a weapon and uttering threats. Further, at the hearing concerning the appeal against conviction, the Crown advised that it had revised its position concerning the contention by the Appellant that the Court ought to receive a Gladue report given Mr. Dixon’s partially Metis heritage. The Appellant had brought an application contending that as no Gladue submissions were made at his original sentencing, s. 718.2 (e) of the Criminal Code was not taken into account by Maresca J. in determining sentence, and the court ought to receive fresh evidence in this regard. The Crown had originally opposed this, but now agreed that it would be appropriate.

3Following argument on the appeal against conviction, the matter was adjourned to allow for the preparation of a Gladue report. Mr. Dixon also changed counsel. Additional submissions concerning the Gladue report that was ultimately prepared were heard on March 11, 2016.

4Counsel for both the Crown and the Appellant were agreed that, in light of the fresh evidence filed in respect of sentence, and the error in the original sentence imposed by the trial judge, the appeal as to sentence should be allowed, and it now falls to me to determine an appropriate sentence pursuant to s.687(1) of the Criminal Code. Specifically, the Appellant Mr. Dixon asks that the summary conviction appeal court determine any issues of sentence, rather than remitting the matter to the trial court for that purpose.

5These reasons for decision thus address both the issue of the appeal against conviction, and the appropriate sentence in light of the fresh evidence that was received concerning Mr. Dixon’s partially Metis heritage and its effect.

The Facts

The Facts

6The Appellant Mr. Brian Dixon was 32 years old at the time of the trial. He has a lengthy criminal record that was elicited at trial by defence counsel. It includes convictions for carrying a concealed weapon, escaping lawful custody, possession of a scheduled substance, multiple convictions for theft, obstructing a police officer, trafficking in a controlled substance, and multiple convictions for failing to comply with a recognizance.

7The Appellant resides with his mother at 24 Gainsborough Drive in Brampton. Residing next door is Andrea Black, a retired teacher. Across the street resides the Cunliffe family: Johanna and Glen, their two daughters Alexandra and Keyanne, and Erin, the daughter of Alexandra. The charges against the Appellant, contained on three informations that were tried together on consent, arise from a pattern of behaviour on the part of the Appellant towards his neighbours that began in 2010.

8The evidence disclosed that over the course of several months, the Appellant verbally abused Ms. Black, smashed bottles onto her property, and accused her of stealing his grandmother’s clothing. It also demonstrated that the Appellant threatened to smack Ms. Black and Johanna Cunliffe, who were standing together at the time, and then threw a plastic bucket which landed between Ms. Black and Ms. Cunliffe.

9The evidence indicated that the Appellant became hostile towards the Cunliffe family within a year of their arrival on the street. He called them names, such as ‘white trash’, ‘white bitches’ and ‘sluts,’ refused on one occasion to immediately leave their property when directed to do so, and on at least five occasions threw glass bottles onto their property, which smashed. Johanne Cunliffe testified (and the trial judge accepted her evidence) that while walking through a local park the Appellant overtook her on a path and said to her, “Oh, one day, one day I’m going to get you. You’ll pay for this. Keep it up. One day you’ll know.”

10The Cunliffe daughters also testified as to incidents involving the Appellant. Keyanna said that on at least three different occasions she encountered the Appellant while walking home; each time, he made eye contact, mumbled, yelled, cursed, called her names, and made noises. Keyanna became so fearful that she began taking taxis to and from work. Alexandra testified that while she was on her driveway with her two year old daughter, she heard a car approaching and heard the Appellant say “watch this.” In response, she pushed her daughter onto the grass and then immediately saw a bottle shatter on the driveway in the spot where her daughter had been standing. When Alexandra looked up, she saw the Appellant in the passenger seat of a car being driven by his mother, with the window rolled down.

Issues

Issues

11Mr. Dixon appeals against the convictions on four grounds set out in his Notice of Appeal. He asserts that the learned trial judge:

a. Misapprehended the evidence concerning the assault against the child; b. Erred in convicting the Appellant of criminal harassment given that the fear of the complainant in the circumstances of this case was not reasonable; c. Pursuant to the rule against multiple convictions for the same delict elaborated in Kienapple, erred in convicting the Appellant of both criminal harassment and threatening death and mischief; and, d. Improperly relied on demeanour evidence to accept the evidence of the Crown’s witnesses, and reject the Appellant’s evidence.

12Mr. Dixon had also elaborated three grounds of appeal concerning the sentence imposed by the trial judge, but since I will be reconsidering the sentence on the basis of fresh evidence at the request of both parties, and the Crown has conceded that the trial judge erred in imposing sentence, it is not necessary for me to consider these grounds of appeal regarding the sentence previously imposed by Justice Maresca.

Position of the Parties

Position of the Parties

13The Appellant has set out his position in his Notice of Appeal and factum. The Crown resists all of his arguments concerning the appeal against conviction in its submissions.

Analysis

Analysis

14I shall address the four grounds raised by the Appellant on his appeal against conviction in sequence. Concerning the first, a misapprehension of the evidence may occur where there is a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. Having reviewed the reasons for decision of the trial judge, I am satisfied that the trial judge did not misapprehend the evidence in relation to the assault with a weapon upon Erin. It was open to the trial judge to accept the evidence of Alexandra on this point, which was that she heard the Appellant say “watch this,” moved her daughter in response, and saw a bottle shatter in the spot where her daughter had stood.

15Concerning the ground contending that there was an error in that the fear of the complainant was not reasonable (an essential element of the offence of criminal harassment), I do not agree. In the present case the trial judge was obliged to assess credibility in accordance with the principles elaborated in W.D., and she did so. Having correctly set out those principles, the trial judge carefully reviewed the evidence of the defence and prosecution witnesses and reached findings of fact that are amply supported by the evidence. The trial judge’s reasons for judgment are sufficiently detailed to allow for meaningful appellate review of the decision. They sufficiently explained the process by which she assessed and reconciled problematic areas.

16The trial judge found that Johanna Cunliffe was a credible witness, and that her evidence with reference to the criminal harassment and uttering threats counts was consistent with the evidence of other members of the family. Similarly with regard to the evidence of Keyanna and Alexandra Cunliffe, the trial judge was alive to the potential frailties but ultimately concluded that on the material points their evidence was credible and reliable. Moreover, the trial judge explained why she rejected the evidence of the Appellant and his mother.

17The evidence of Johanna Cunliffe, and that of the other Crown witnesses, was enough to substantiate the reasonableness of her fear in the circumstances.

18The reasons of the trial judge are considered, intelligible and responsive to the issues raised at trial, and her findings as to credibility are entitled to deference.

19Regarding the third ground of appeal, the Kienapple principle operates to preclude multiple convictions arising from the same delict. As each of the convictions in the present case involved a separate delict, the Kienapple principle is not engaged. The criminal harassment against all three complainants – Johanna and Keyanna Cunliffe and Andrea Black – is particularized as repeated communications contrary to s.264(1) (b) of the Criminal Code, and not as threatening contrary to s. 264(1) (d). There is thus no overlap with the uttering threats counts.

20Finally, regarding the fourth ground of appeal, which asserts that the trial judge improperly relied on demeanour evidence to accept the evidence of the Crown’s witnesses, and reject the Appellant’s evidence, I do not concur. The trial judge did not misuse demeanour. Instead, she carefully considered the content of the witnesses’ testimony and, to the extent that demeanour was considered (in respect of the Prosecution witnesses Johanna and Keyanna Cunliffe), it demonstrated that the trial judge was alive to the possibility that otherwise credible witnesses were capable of exaggeration. If anything, this would have accrued to the benefit of the Appellant. There is nothing to indicate in the trial judge’s reasons that she applied a different standard of scrutiny to the prosecution and defence evidence, or that she improperly misused demeanour in the assessment of credibility of any witness’s evidence.

21Turning to the issue of an appropriate sentence, I have carefully considered all of the evidence from the trial, as well as the letters of support for Mr. Dixon admitted as exhibits on sentencing, the Pre-Sentence Report, the report of Dr. Srinivasan, the Victim Impact Statements, and the letter written by Brittany Whylie of the Peel Aboriginal Network dated November 12, 2015 (the Gladue Report) in evidence as an exhibit on sentencing.

22I have considered the principles of sentencing set out at s.718, 718.1 and 718.2 of the Criminal Code, and in particular 718.2(e).

23I have taken note of the Gladue principles as elaborated in R. v. Gladue, [1999] 1 S.C.R. 688, and amplified in R. v. Ipeelee, [2012] SCC 13. I take the appropriate judicial notice of such matters as the history of colonialism, displacement and residential schools, and how the history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher level of incarceration for Aboriginal peoples. In particular, the historical discrimination and identity difficulties experienced by people of mixed Black and Metis heritage in Nova Scotia, and the Eastern Woodland Metis Nation especially, as described in the Peel Aboriginal Network letter, are a sad and poignant chapter in our country’s history.

24As noted in these cases, these matters do not, on their own, necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

25The account of Mr. Dixon’s life history depicted in the Peel Aboriginal Network report does suggest that Mr. Dixon’s contact with his aboriginal heritage was fairly limited until recently. His current interest in his family’s cultural identity is commendable, and the report suggests that his engagement with the aboriginal community will be a positive influence for him. However, his limited prior engagement and sense of identity does raise the question of how much influence it has had on him in the past, and thus the degree to which the Gladue principles should actually apply in this case. The Crown has provided me with three cases which suggest that the mitigating significance of the Gladue principles in circumstances where the appellant has had minimal prior connection with his aboriginal culture is limited: R. v. Quin, [2014] O.J. No. 6544 (C.A.) at para. 5; R. v. Pepin 2013 ONCA 168 at para. 1; and R. v. D.B. 2013 ONCA 691 at paras. 12-15.

26However, from what I am able to glean from the report I am willing to accept that the Appellant’s sense of dislocation and confused identity arising from his mixed Black-Aboriginal heritage, and even more particularly the negative influence of his father, have been significant adverse influences in his life. I am prepared to give some weight to them in mitigation consistent with s.718.2 (e) considerations.

27The aggravating facts in this case include;

a. Mr. Dixon’s extensive prior criminal record; b. His history of failing to comply with court orders; c. That he essentially terrorized his neighbours over an extended period; and, d. The impact upon his neighbours, as addressed in the Victim Impact Statements of Andrea Black and Jo, Glen, Keyanna and Alexandra Cunliffe;

28The mitigating factors include:

a. Mr. Dixon’s mental health issues, as described in the report of Dr. Srivinasan; b. The recent efforts that he has made to improve his education, as indicated in the letters from the Scarborough Center for Alternative Studies in evidence on sentencing; and, c. The difficult circumstances of Mr. Dixon’s upbringing, and in particular the difficulties associated with his mixed heritage (Black and Metis), as described in the Peel Aboriginal Network letter, and the negative influence of his father.

29I consider, in balancing all of these factors, that the principles of denunciation and general and specific deterrence must be emphasized in this case, given the effect of his actions on the victims.

30I would endorse the following conclusion from the reasons for sentence of the trial judge in this case:

Even with the utmost concern for Mr. Dixon’s situation, the principles of denunciation and deterrence are of primary importance in this case. Society cannot tolerate an individual terrorizing a neighbourhood such that people who wish simply to live in peace cannot go out of their homes or sleep at night without fear of harm. Such actions on the part of Mr. Dixon are shocking and must be denounced. The only way that the court can be certain that Mr. Dixon will not reoffend is to remove him from the community…. In this case I am cognizant that Mr. Dixon has not been able to comply with court orders, but in particular I look to the plight of the victims in this case. Not only must Mr. Dixon’s actions be denounced but he must also be deterred from harassing these people in the future….

31I have considered the defence submission that I ought to consider the imposition of a conditional sentence pursuant to s. 742.1. I have particularly considered the analysis of the criteria examined by the Court in R. v. Proulx 2000 SCC 5. For the reasons discussed above, I consider that on the facts of this case, the criterion that the safety of the community would not be endangered by the offender serving the sentence in the community is not satisfied. I therefore do not consider the imposition of a conditional sentence to be an appropriate disposition in this case.

Disposition

Disposition

32The appeal against conviction is dismissed.

33The sentence appeal is allowed. The sentence will be varied as follows:

a. The Appellant Mr. Dixon is sentenced to imprisonment for nine months for the assault with a weapon conviction relating to Erin Cunliffe, and nine months for the assault with a weapon conviction relating to Johanna Cunliffe, concurrent. From this will be subtracted time served (33 days, credited at a 1.5 to one ratio, for 50 days credit) and credit for three months of Downes time having regard to pretrial restrictions on his liberty. On the remaining counts, he is sentenced to six months imprisonment concurrent to each other, and concurrent to the nine months for the assault with a weapon counts. b. Following his release from custody Mr. Dixon will be on probation for a period of two years, the conditions of which shall include: i. Keep the peace and be of good behaviour; ii. Appear before the Court when required to do so; iii. Notify the Court or your probation officer in advance of any change of name or address or of any change of employment or occupation; iv. Report within 48 hours of release from incarceration to a probation officer and thereafter as directed by your probation officer; v. Reside at an address approved by your probation officer; vi. Actively participate in any assessment, counselling, evaluation, or treatment that may be directed by or arranged by your probation officer; vii. Sign any waivers, consents or releases necessary to monitor compliance with this and any other condition of your probation order; viii. Abstain absolutely from the possession or consumption of any drugs or controlled substance listed in a Schedule to the Controlled Drugs and Substances Act, that is not prescribed by a physician; ix. Abstain absolutely from the possession, consumption or purchase of alcohol; x. Maintain or actively seek employment, and/or register in and attend a course for advancement of your education; xi. Do not possess any weapons of any kind, including firearms or crossbows; and, xii. Do not travel outside Canada without the written permission of your probation supervisor.

34Pursuant to s. 487.051 of the Criminal Code, a sample of bodily substances shall be provided for the purpose of forensic DNA analysis.

35During the incarceration and period of probation, Mr. Dixon is to abstain from communicating, directly or indirectly, with Ms. Andrea Black or with Johanna, Glen, Alexandra, Keyanna, or Erin Cunliffe, or any member of their family. He is not to attend the residence or place of employment of any of these persons.

36There shall be a s.109 weapons prohibition order for ten years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

Gibson J.