COURT FILE NO.: 8200/20

DATE: 2021-10-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

W. Trent Wilson/S. Woods, Counsel for the Crown

• and -

SHAUN PHILLIP WILSON

Eric D. McCooeye, Counsel for the Accused

HEARD: February 1, 2, 3, 4, 5, 8, 9, 10, 11, August 9, 10, 11, 12, 13, 16, 17, 19, September 29, 2021

GAREAU J.

REASONS FOR JUDGMENT

[1] The accused, Shaun Phillip Wilson, is charged with seven offences as set out in the indictment dated June 1, 2020. The indictment reads as follows:

1. Shaun Phillip Wilson stands charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did attempt to murder Marvin Edward Seymour, contrary to section 239(1)(b) of the Criminal Code of Canada, and

2. Shaun Phillip Wilson stands further charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did break and enter a certain place, to wit: 141 Front Street, Unit #11, Spanish, Ontario, with intent to commit an indictable offence therein, contrary to section 348(1)(a) of the Criminal Code of Canada, and

3. Shaun Phillip Wilson stands charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did rob Marvin Edward Seymour of a sum of monies and personal property contrary to section 344 of the Criminal Code of Canada, and

4. Shaun Phillip Wilson stands further charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did wound, maim, disfigure or endanger the life of Marvin Edward Seymour, thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada, and

5. Shaun Phillip Wilson stands charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did wound, maim, disfigure or endanger the life of Dawn Marie Martel, thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada, and

6. Shaun Phillip Wilson stands charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, with intent to commit an indictable offence, did have his face masked, contrary to section 351(2) of the Criminal Code of Canada, and

7. Shaun Phillip Wilson stands charged that he on or about the 25th day of January 2019, at the Town of Spanish, in the said Region, did by word of mouth knowingly utter a threat to Marvin Edward Seymour to cause death to Dawn Marie Martel, contrary to section 264.1(1)(a) of the Criminal Code of Canada.

[2] The accused entered pleas of not guilty to all the charges.

[3] The trial proceeded as a hybrid trial, in that some of the evidence was heard remotely and some in person. The court heart testimony by Zoom on February 1, 2, 3, 4, 5, 8, 9, 10 and 11, 2021. The court heard in person evidence on August 9, 10, 11, 12, 13, 16, 17 and 19, 2021. The court received submissions from counsel on September 29, 2021. During the Crown submissions, it was conceded that based on the evidence the court should be left with a reasonable doubt with respect to count 1, namely, the charge of attempt murder, contrary to section 239(1)(b) of the Criminal Code of Canada. The Crown acknowledged that an intent to kill was not established on the facts.

[4] The court heard from numerous Crown witnesses, either by Zoom or in person. The accused elected not to call a defence. The court reserved its decision and the matter was adjourned to October 13, 2021 for decision.

Factual Background

[5] Marvin Edward Seymour (known as Teddy) resided at 141 Front Street, Unit 11, Spanish, Ontario. A friend, Dawn Martel, was staying with him on the night in question. A female that Teddy was previously involved with, Jammie Lynn Sherwin, resided at 141 Front Street, Unit 5, Spanish, Ontario, just a short distance from Teddy. At the time of the incident, Teddy’s son, Shawn Seymour, was residing at the home of Jammie Lynn Sherwin. Ms. Sherwin was previously romantically involved with the accused and is the mother of his children.

[6] In the early morning hours of January 25, 2019, two masked males entered the home of Teddy Seymour at Unit 11 and attacked Dawn Martel and Teddy Seymour. It is alleged that certain items of property, such as a safe, cash, a watch and drugs were removed by the assailants from the home of Teddy Seymour. Dawn Martel and Teddy Seymour were assaulted by the assailants, in the case of Mr. Seymour, viciously with a bat. Paramedics were paged to the Front Street address in Spanish, Ontario at 3:10 a.m. on January 25, 2019 and were at the scene at 3:43 a.m. This timeline is consistent with other evidence received by the court, such as the time of the text by Martel to her friend John Koper, asking for 911 to be called, which was sent on January 25, 2019 at 3:08 a.m., and to Liisa Zygmunt who received a text at 3:17 a.m. asking that 911 be called. Additionally, it was the evidence of the communications operator at the Provincial Communications Centre that the first call to 911 by Dawn Martel was at 3:01 a.m. on January 25, 2019, and the second call was taken from her at 3:23 a.m. Dawn Martel indicated that one of the intruders was larger with a heavy build and the other intruder was shorter with a slight build.

[7] The photographs from 141 Front Street, Unit 11 (Exhibit 1) depict a bloody scene with blood all over the bedroom that was occupied by Teddy Seymour and Dawn Martel. This bloody scene is consistent with the severe injuries suffered by both Martel and Seymour. The medical evidence received by the court indicates that Mr. Seymour had a significant closed head injury, spine fractures, a collapsed lung, injury to his diaphragm, and rib fractures. He entered the Sudbury Regional Hospital in a comatose state and was breathing through a tube. Dawn Martel had a depressed skull fracture with bleeding around the brain. In addition to this, she had swelling and obvious injury to the side of her head and face and a swollen eye. Mr. Seymour was described by neurosurgeon Dr. Ryan DeMarchi as “severely neurologically injured”. Dawn Martel required surgical intervention to remove pressure on her brain and remove bone fragments in her skull.

[8] Exhibit 1 (Crown’s photobook) depicts the close proximity between Units 5 and 11 at 141 Front Street. It also shows a blood trail leading from Unit 11 to Unit 5 and an ATV parked in front of Unit 5. As a result of police investigation, the son of Teddy Seymour, Shawn Seymour, and Jammie Lynn Sherwin were initially charged with criminal offences arising from the assault of Dawn Martel and Teddy Seymour. They were arrested on January 25, 2019 at 7:26 a.m. at Unit 5, and after further investigation were subsequently released from custody with the charges against them being dropped.

[9] Jason Gamble and Shaun Wilson were arrested on January 29, 2019 at 12:41 p.m. A subsequent search of their respective residences was carried out and evidence linking Jason Gamble to the crime was located at 7 Beckett Boulevard in Elliot Lake, Ontario. Jason Gamble acknowledged his involvement in the break and enter and assault of Seymour and Martel and entered pleas of guilt and was sentenced by the court for his involvement.

[10] The issue before the court is that of identity and whether the accused Shaun Wilson was with Jason Gamble on January 25, 2019 at Unit 11, 141 Front Street, Spanish, Ontario. Was he the other assailant?

Finding of Fact

[11] Considering the totality of the evidence the court can make the following findings of fact:

(a) There was a blood trail leading from Unit 11 to Unit 5, 141 Front Street, which was the unit occupied by Jammie Lynn Sherwin and Shawn Seymour.

(b) That there was traffic from a smaller vehicle, possibly an ATV vehicle during the morning hours on January 25, 2019 heading from Elliot Lake toward Spanish and back from Spanish toward Elliot Lake. Two such vehicles were travelling toward Spanish and one such vehicle travelled from Spanish toward Elliot Lake.

(c) The accused Shawn Wilson’s ATV was parked in front of Unit 5, 141 Front Street when the paramedics and police arrived at Unit 11, 141 Front Street in the morning of January 25, 2019.

(d) When police authorities surrounded Unit 5, 141 Front Street demanding that the occupants exit the residence, Jammie Lynn Sherwin and Shawn Seymour remained in that residence from 4:30 a.m. when the demand was made until 7:26 a.m. when they came out of the residence and were arrested by police.

(e) Jason Gamble and Shaun Wilson were arrested for the crimes at Unit 11, 141 Front Street on January 29, 2019 at 12:41 p.m. while outside of their residences on Beckett Boulevard, Elliot Lake, Ontario.

(f) There was much animus between the victim Teddy Seymour and his son Shawn Seymour. Two days prior to the incident, Shawn Seymour was observed at the front of Unit 5 swinging a bat and threatening to kill his father. At the time of the assault, Teddy Seymour had asked his son to leave his home and there was no contact between them.

(g) There was an ongoing relationship between Jason Gamble and the accused Shaun Wilson who was seen to visit each others’ homes and interact with each other.

(h) The accused Shaun Wilson was at the home of Jammie Lynn Sherwin at Unit 5, 141 Front Street, on the morning of January 25, 2019 prior to Teddy Seymour and Dawn Martel being assaulted. The totality of the evidence places the accused in the area where the assault took place. The real issue is whether there is evidence to place the accused at Unit 11, 141 Front Street to satisfy this court beyond a reasonable doubt that he was the assailant, along with Jason Gamble, who was in that home the morning of January 25, 2019.

Analysis of the Evidence

[12] Although there was forensic evidence linking Jason Gamble to the crime scene, there is absolutely no forensic evidence linking the accused Shaun Wilson to the crime scene. Although there was ample crime investigation that took place as noted by Ontario Provincial Police Forensic Identification Officer Kevin Pritchard, “nothing I did there connects it to Shaun Wilson”. There is no blood, no footprint impressions or no hair that links the accused to either Unit 11 or Unit 5 at 141 Front Street, Spanish, Ontario. Furthermore, a search warrant was executed on January 30, 2019 at the accused’s residence at 1 Beckett Boulevard, Elliot Lake, Ontario. There was nothing found at the accused’s residence by way of forensic or physical evidence that connects Shaun Wilson to either residence at Unit 5 or Unit 11, 141 Front Street in Spanish, Ontario. This is the polar opposite to Jason Gamble who was connected to the crime scene by physical and forensic evidence found at his home at 7 Beckett Boulevard.

[13] Ronald Lai, a forensic scientist at the Centre for Forensic Sciences was qualified to provide expert opinion evidence to the court. Mr. Lai produced three reports in connection with this matter, namely, a report dated April 26, 2019 (Exhibit 32), a report dated August 21, 2019 (Exhibit 33) and a report dated December 20, 2019 (Exhibit 34). The first report concludes that the victim Teddy Seymour cannot be excluded as a contributor to the blood on specified locations and items at 141 Front Street, Unit 5 (where Jammie Lynn Sherwin and Shawn Seymour resided) or at 7 Beckett Boulevard (where Jason Gamble resided).

[14] The August 21, 2019 report of Mr. Lai dealt with a jacket seized from the trunk of the Sebring vehicle parked outside of the accused’s residence at 1 Beckett Boulevard. That report indicated that blood was not detected on the right cuff of the jacket and that Teddy Seymour and Dawn Martel are excluded as contributors to the DNA on the right cuff of the jacket.

[15] The December 20, 2019 report from Mr. Lai resulted from DNA samples being provided by Jason Gamble and the accused Shaun Wilson. With respect to Gamble, the report concludes that he cannot be excluded from the swab of the heel of the left boot found at 7 Beckett Boulevard. With respect to Wilson, that report concludes that he cannot be excluded as a contributor to the swab from the inside right cuff of the jacket found in the Sebring vehicle. As indicated by Mr. Lai, there is “strong scientific evidence to support that Shaun Wilson is a contributor to the DNA profile on the cuff of the inside of the jacket”.

[16] Ronald Lai gave his evidence in a thoughtful and balanced manner. He was an impressive witness. Mr. Lai testified that anything tested from Unit 5, 141 Front Street, Spanish, had no connection to Shaun Wilson, and similarly anything tested from Unit 11, 141 Front Street, Spanish, or 7 Beckett Boulevard, Elliot Lake had no connection to Shaun Wilson.

[17] Simply put, even though the crime scene at Unit 11, 141 Front Street was a bloody crime scene with blood everywhere and items strewn about the residence, there is absolutely no forensic evidence which links the accused to the crime.

[18] To place the accused at Unit 11, 141 Front Street with Jason Gamble the court would have to accept the evidence of Heather Whalen and Jammie Lynn Sherwin. Jason Gamble’s common-law spouse, Crystal Devoe, also testified for the Crown. Ms. Devoe resided with Jason Gamble at the time of the incident on January 25, 2019 and at the time of his arrest on January 29, 2019. Her evidence is unhelpful as to the evening of January 24 and the morning of January 25, 2019. It was the evidence of Crystal Devoe that she went to bed around 10:00 p.m. on January 24, 2019. Jason Gamble was in the garage at the time she went to bed. After Ms. Devoe went to sleep, she recalls being awakened by Mr. Gamble who kissed her on the forehead. It was dark outside at the time. Ms. Devoe went back to sleep. In cross-examination, Crystal Devoe acknowledged that Heather Whalen never spoke to her about any incident in Spanish or what Jason Gamble or Shaun Wilson did in Spanish. The most enlightening portion of the evidence of Crystal Devoe was when she revealed, in cross-examination, that Dawn Martel (one of the victims of the assault) was in a relationship with and going to marry Jason Gamble (one of the perpetrators of the assault). This revelation obviously caught the Crown by surprise as it was the Crown who asked Ms. Devoe to return to court the next day with the text messages sent to her by Dawn Martel pertaining to her relationship with Jason Gamble. On returning to court the next day, Crystal Devoe produced three screenshots of texts sent to her by Dawn Martel, entered as Exhibits 43(a), (b), and (c). Exhibit 43(a), sent on December 2, 2019 at 1:35 p.m. by Ms. Martel, reads as follows:

Hey girl

How have u been

If u stil talk to crystal tell her jason wants nithing to do with her n to leave him and his family alone

Hes happy with me thats all he needs

Exhibit 43(b) is dated August 4 at 2:20 p.m. sent by Ms. Martel and reads as follows:

Mayb3 u should fuck right off and leave Jason alone STOP WRITING HIM THR THOUGHT OF U MAKES HIM WANNA VOMIT

He wants nothin to do with u and u were never worthy of a ring

Pls move on and leave us alone hes doin wrll and finally happy and content movw fwd leave him be

He wants u to STOP WRITING HIM

Exhibit 43(c) from Dawn Martel reads as follows:

Hope ur okay hun he finally called we spoke less than 8 mins i told him i was done in court he asked if insaw u i said just briefly but we didnt talk and intold him that someone informes the judge tbat we were engaged bur i didnt tell him it was u i just sais that crown confronted me but wouldnt tell me where he heard it from..

[19] The tenor of the evidence given by Dawn Martel at the trial was that the bigger guy (Gamble) was rummaging around Unit 11 looking for a safe and it was the other assailant, the smaller one, who was in Teddy Seymour’s bedroom, obviously the person who was laying a beating on Teddy. At one point in her evidence, Ms. Martel says when the smaller assailant was standing over her the covering on his face fell down, but she did not recognize him. At another point in her evidence, Ms. Martel testified that it was Shaun Wilson who was the smaller assailant, although she had limited contact with Shaun Wilson. Similarly, Ms. Martel testified that she was certain the smaller assailant was not Shawn Seymour, although he was similar in stature to the assailant and her contact with him was limited and dated.

[20] The evidence given by Dawn Martel with respect to Shawn Seymour and Shaun Wilson was troubling and not worthy of belief. Dawn Martel lied to the court and, I believe, purposely misled the court. She misrepresented her relationship with Jason Gamble as established by the evidence of Crystal Devoe and the text messages she sent entered as Exhibits 43(a), (b) and (c). When asked about her contact with Jason Gamble in examination in-chief by the Assistant Crown Attorney, the following questions were asked of Dawn Martel and the following answers were given by her:

Q. How much time would have passed between – you know, in the intervening years between when you were 13, 14, and when this happened in January of 2019, had you seen either Mr. Gamble or Mr. Wilson and met them on the street and talked to either of them?

A. No.

Q. Never talked to them.

A. Never talked to them.

Q. Have you talked to either of them since?

A. I had one conversation with Mr. Gamble after his sentencing.

Q. Okay. You haven’t talked to Shaun Wilson...

A. No.

Q. ...since, since this occurred. You talked to him when you were 13, 14, I guess.

A. No.

Q. So, you knew of him, you knew what he looked like, but you never – you haven’t had any conversation with him since this incident occurred.

A. Right.

Q. Okay. And what about Mr. Gamble? You said you had one conversation with him...

A. Right.

Q. ...when was that?

A. It was right after his sentencing.

Q. All right. So, what about at his sentencing, do you know when that was, and did you have any conversation with him there?

A. I don’t remember exactly what day and month that it was now.

Q. Sure. But you saw him. Did you talk to him, and did he talk to you at the sentencing?

A. I read my victim impact statement to him...

Q. Right.

A. ...and he responded.

Q. In open court.

A. Right.

Q. Okay. And you’re saying that since then, since that sentencing, you’ve had one conversation with him.

A. Right.

Q. How did that take place?

A. He had called and just apologized and expressed his sorries [sic] for his involvement in everything, and that was it.

Q. Okay. so, he called you.

A. Yes.

Q. Do you have any idea how he had your number?

A. I assume from his aunt.

Q. Do you know his aunt?

A. I know his aunt.

Q. Did you give his aunt your number intending that he contact you, or asking him to contact you...

A. No.

Q. ...or anything of that nature? No. And how long did that conversation take place?

A. Maybe five minutes.

Q. Okay. How long ago was it, Dawn? I mean, give us an idea here.

A. Couple months.

Q. Okay. It must have come as somewhat of a surprise to you to have Jason Gamble, given his circumstances and given what has happened, to have him call you up out of the blue.

A. Right.

Q. Do you have any sort of a relationship with Jason Gamble?

A. No.

Q. Any sort of prospects for any kind of friendship, intimate relationship going forward in the future?

A. No.

[21] Clearly, Dawn Martel is misleading the court about her relationship with Jason Gamble. In my view, this calls into serious question her credibility and the reliability of any of the evidence that she gave to the court. Her evidence related to Jason Gamble was protective. She had the smaller assailant giving the beating to Teddy Seymour. The court has to wonder if this evidence is not distorted or slanted to protect Mr. Gamble with whom she professes to be engaged and in a relationship with despite the contrary evidence that she gave under oath to the court.

[22] The overall assessment of the evidence of Dawn Martel is not favourable. She has clearly lied to the court and has purposely misled the court. I accept Mr. Martel’s evidence that two masked men entered 141 Front Street, Unit 11, Spanish, Ontario during the morning of January 25, 2019 and inflicted a beating on her and Teddy Seymour. Otherwise, I accept none of her evidence and place no weight on it.

[23] Heather Whalen resided with the accused Shaun Wilson on January 25, 2019. They resided at 1 Beckett Boulevard, Elliot Lake, Ontario with Ms. Whalen’s two children and Mr. Wilson’s three children with Jammie Lynn Sherwin. They resided a few doors down from Jason Gamble and Crystal Devoe.

[24] It was the evidence of Heather Whalen that the accused Shaun Wilson told her that he was going to commit the crime and that when he returned to the home, Mr. Wilson told her that he had done it and that there was blood everywhere. It was the evidence of Ms. Whalen that Shaun Wilson told her that he was going to go and do it while she was in the garage and her friend Christine was with her in the garage. Ms. Whalen testified that Shaun Wilson and Jason Gamble left on two ATV vehicles around 11:00 p.m. on January 24, 2019 and that around 5:00 a.m. the next morning that she was awakened by Shaun Wilson who told her that he had done it and threw some marijuana and cash on the bed. It was the evidence of Heather Whalen that she did not search for her glasses to see these items or to see what kind of condition or state that Shaun Wilson was in, rather she simply went back to sleep. The next morning, Heather Whalen testified that she did not search her home for bloody articles or conduct any search of her home but that she did attempt to remove blood from the right sleeve of Mr. Wilson’s jacket. The morning of this crime after the confession by the accused, Heather Whalen simply went about her usual routine, essentially as if nothing happened.

[25] In my view, there were portions of the evidence of Heather Whalen which defied logic, defied common sense and were difficult to accept. Heather Whalen says she was told by Shaun Wilson that he was about to go out to commit a violent crime, to beat up Teddy Seymour. Ms. Whalen testified that she knew that Shaun Wilson was frustrated with Teddy Seymour for harassing and stalking Jammie Lynn Sherwin. Ms. Whalen must have believed that what Mr. Wilson was telling her may likely occur. But Ms. Whalen did nothing. She did not call Mr. Gamble’s partner, Crystal Devoe, she did not call the police or Teddy Seymour or anyone else to try to prevent this event from occurring. Rather, Heather Whalen just simply went to bed. This is hard to believe and makes this court wonder if there was any conversation by the accused at all with Ms. Whalen. Mr. Wilson is supposed to have made the statement or a similar statement about going to Spanish to do this while Heather Whalen was in the garage with her friend Christine. Heather Whalen said that Shaun Wilson did not whisper it in her ear, but that he was right beside her when he said it. This conversation could have been heard by Christine. Why would Shaun Wilson have made such a statement with someone around and the risk that it would be overheard? It just does not make sense.

[26] It was the evidence of Heather Whalen that when Shaun Wilson returned to their home around 5:00 a.m. on January 25, 2019 that he woke her up, told her what he had done and threw marijuana and money on the bed. Heather Whalen cannot tell the court how much money there was or whether Mr. Wilson had any blood on him. Why? Because she didn’t bother to get her glasses to see any of this. Her partner has just confessed a crime to her, a bloody crime scene, and has shown her items he has taken and Heather Whalen does not go to the effort to locate her glasses, put them on and see what is going on in a major event in her life. She does not do any of this. What does she do? It was her evidence that, “I went back to sleep”. With the circumstances and events that Heather Whalen described to the court it is difficult to believe that a rational person would react in the way that Heather Whalen says she reacted.

[27] It was the evidence of Heather Whalen that when she got up after going back to sleep on the morning of January 25, 2019 that she simply went about her usual routine. She did not look around her home for bloody items or for evidence that Shaun Wilson had committed a crime. She did none of this even though the police could have been at her door at any time requesting to search her home with respect to the crime that he had committed. Heather Whalen’s explanation for this was that “her concern was for her children, to keep them out of the system”. Would not the best way to protect her children not be to look around the house to see what she was dealing with and had to take care of? Would this not be the best way to protect her children or her family? It defies belief that in the face of what Shaun Wilson told her about what he did that she would just get up the next day and carry on with her regular routine as if nothing happened. This is more the actions of someone who was unaware that a crime had been committed than someone who has received a confession from the perpetrator that a crime has been committed.

[28] Despite the fact that she carried on with her usual routine during the morning of January 25, 2019, Heather Whalen did indicate in her evidence that she attempted to remove the blood off the sleeve of Shaun Wilson’s jacket. Ms. Whalen indicated that despite cleaning a jacket that was at the crime scene, she never looked in the pocket of the jacket. Her explanation for not doing so was that “a person is entitled to privacy”. It is worthy of note that when the Centre of Forensic Sciences examined the jacket of Shaun Wilson, they could not detect blood on it. At trial, Heather Whalen testified that she tried to remove blood off the jacket. At the preliminary hearing, Ms. Whalen testified that she did not take the blood off the sleeve of Mr. Wilson’s jacket. Heather Whalen’s explanation for the inconsistency is that she meant that she tried to take the blood off the sleeve of the jacket but never got the blood off the sleeve of the jacket.

[29] Heather Whalen tried to get the blood off of Mr. Wilson’s jacket but did not try to get the blood off her own boots, which Mr. Wilson is alleged to have been wearing at the crime scene. In her evidence in-chief, Ms. Whalen testified that she inspected her boots and saw skin and blood on the bottom of the boots but did not clean them. At trial, Heather Whalen testified that she “didn’t see stuff underneath because I did not look at it”. She went on to testify in cross-examination that “I did nothing to the boots. I didn’t want to look at the bottom of the boots.” Heather Whalen was not prepared to acknowledge the inconsistency in her evidence in-chief from that which she gave in cross-examination. Ms. Whalen’s suggestion that she would try to clean an article of clothing owned by Shaun Wilson and not try to clean off an item owned by her, that can be directly linked to her does not make any sense.

[30] Heather Whalen testified that she did not see a safe. Her evidence was that Shaun Wilson brought up the safe but said he didn’t take it indicating that there had to be “two crimes in one”. Why would Shaun Wilson mention a safe if he didn’t take it or didn’t have it in his possession? This evidence of Heather Whalen does not make any sense.

[31] All of the aforementioned troubling aspects of the evidence of Heather Whalen are complicated by the fact that she told none of this to the police when she was first approached to give a statement. This story that Heather Whalen spins only comes out and is only provided to police authorities after her relationship with Shaun Wilson has soured, after she has difficulty getting her items back from Mr. Wilson and goes to the police in an attempt to get them back and after she discovers that Shaun Wilson is in a relationship with a female by the name of Sonny. Heather Whalen discovers the new relationship Mr. Wilson is in on Facebook on September 18, and by September 23, she is talking to the police. In my view, the timing is too coincidental not to raise questions. Heather Whalen is admittedly angry at Shaun Wilson. She describes it as being “devastated, angry, upset and frustrated”, yet she denies that she wanted to get back at him or has an axe to grind against him. Ms. Whalen’s explanation for providing a second statement to the police was that “I have a conscience. I needed to speak the truth. I can’t do it anymore”. Heather Whalen has a clear motive to fabricate her evidence to settle a score with Shaun Wilson. When pressed about this in cross-examination, Ms. Whalen was prone to make a long-winded speech rather than answering the questions put to her in a direct, forthright manner. It was as if Heather Whalen was advancing her own agenda.

[32] Given the obvious frailties in the evidence given by Heather Whalen and the fact that a great deal of her evidence defies logic, common sense, and are not rational responses to the circumstances, which Ms. Whalen describes that she is in, I have serious doubts about her evidence concerning what Shaun Wilson might have said to her the evening of January 24, 2019 or the morning of January 25, 2019, and what Mr. Wilson is alleged to have disclosed to her concerning his involvement in the events at 141 Front Street, Unit 11, Spanish, Ontario. I simply have doubts about the evidence of Heather Whalen and cannot conclude that her evidence establishes beyond a reasonable doubt that Shaun Wilson was at Unit 11 at 141 Front Street on the morning of January 25, 2019.

[33] That leaves the court with the evidence of Jammie Lynn Sherwin. To say that there are difficulties about the reliability of the evidence of Ms. Sherwin is a colossal understatement. Ms. Sherwin is a drug addict. At one point she was involved with Teddy Seymour who would give her cocaine and speed in exchange for sex. As Ms. Sherwin put it in her evidence, “I had to do something for it”. After her relationship with Teddy Seymour ended, Jammie Lynn Sherwin moved close by to Unit 5, 141 Front Street in Spanish. She was being stalked by Teddy Seymour who would look into her windows. Both Shaun Wilson and Shawn Seymour knew about the stalking. At the time of the incident, both on January 24 and 25, 2019, Jammie Lynn Sherwin was in a bad place in her life. She was drunk from alcohol and high on drugs every day at that time. She described in her evidence waking up as if she had an “out of body experience”, not knowing whether what she thought was true was really true or not. As Jammie Lynn Sherwin put it in her evidence, “my whole time in Spanish is a blur, really”. To her credit, Ms. Sherwin was candid in her evidence that she had difficulty with drugs, that she cannot recall much and what she can remember is “general ideas” with particular details being a “little fuzzy”.

[34] With these candid admissions by Jammie Lynn Sherwin and the fact that she was high on drugs and drunk on alcohol most of her time in Spanish, which goes to explain why her time in Spanish was a “blur” to her, the court cannot have much faith in Ms. Sherwin’s recollection of particular events or the exact comings and goings of people within her home on the evening of January 24 and morning of January 25, 2019. As she admitted, she was in her room, under the influence and attempting to sleep. She may have heard the voices of Jason Gamble, Shaun Wilson, and Shawn Seymour, but her evidence is unhelpful as to where they might have been within her home or outside her home, or what exactly they were doing. For instance, Ms. Sherwin readily acknowledged to the court that she does not know where Shawn Seymour was within the home or where he went.

[35] Despite these limitations some use can be made of the evidence of Jammie Lynn Sherwin in a general way. I accept her evidence that,

(a) Teddy Seymour was stalking her;

(b) that Shaun Wilson and Shawn Seymour knew that Teddy Seymour was stalking her;

(c) that Shaun Wilson and Jason Gamble were at her home at Unit 5, 141 Front Street, Spanish, Ontario on January 25, 2019;

(d) that Shawn Seymour had a volatile relationship with his father and that at one point in time he was outside swinging a bat, threatening to kill his father. I accept Ms. Sherwin’s evidence that Shawn Seymour talked about killing his dad more than once and that it was “not uncommon for him to say this”;

(e) that Shawn Seymour was upset that his 16-year-old girlfriend was over at the home of Teddy Seymour;

(f) that on the morning of January 25, 2019 that she was in her room and Shawn Seymour was somewhere else in Unit 5 and that she does not know where he was on where he went;

(g) that approximately one month before the January 25, 2019 incident that Jason Gamble and Shawn Seymour were together in the absence of Shaun Wilson and they discussed robbing Teddy Seymour and that Shawn Seymour knew that Teddy Seymour had money in his home.

[36] As to the comings and goings of Jason Gamble and Shaun Wilson from Unit 5, 141 Front Street, Spanish, Ontario, during the evening of January 24, 2019 and morning on January 25, 2019, it would be dangerous for the court to put any reliance on any of the evidence of Jammie Lynn Sherwin given her state of intoxication from alcohol and drugs at the time and given her admission that “my whole time in Spanish is a blur, really”. Although the evidence of Jammie Lynn Sherwin places the accused Shaun Wilson at Unit 5 on the morning of January 25, 2019, there is no evidence from Ms. Sherwin that the court can rely on which places Shaun Wilson at Unit 11, 141 Front Street, Spanish, Ontario on the morning of January 25, 2019.

[37] The Crown has pointed to the fact that items belonging to Teddy Seymour, namely, old currency and his son’s wristwatch, which were found in the jacket pocket of the accused’s jacket located in the Sebring vehicle as evidence pointing to the accused’s involvement in the incident at Unit 11, 141 Front Street. There is no evidence as to how the jacket got into the trunk of the Sebring vehicle or who put it there. The evidence indicated that Shaun Wilson did not have the exclusive use of the Sebring vehicle and although there is evidence that he was a passenger in the vehicle, there is no evidence that he drove the vehicle. It is curious that the currency and watch were found in the accused’s pocket, but this does not conclusively point to his involvement in the assault or the robbery at Unit 11, 141 Front Street. There are other plausible explanations such as these items might have been placed in Mr. Wilson’s jacket by someone else or may have been given to him by Jason Gamble, who we know was his friend and who we know was involved in the incident, since he has acknowledged and admitted his involvement. There is also the question raised by the defence as to whether the court can be satisfied that the currency and watch were in fact in Teddy Seymour’s home and did in fact belong to him.

[38] It is clear in the evidence that Teddy Seymour did not take an inventory of what was in his home prior to the incident or what was taken from his home after the incident. As Teddy Seymour acknowledged in his evidence, he had no real opportunity to return to his home after January 25, 2019 and therefore had no opportunity to take stock of what was missing from it. The defence also takes issue about how it comes about that Teddy Seymour identifies the old currency as his or the watch as his son’s. Teddy Seymour does not tell the police what is missing, rather the police come to him with the items found in Shaun Wilson’s jacket and ask him to identify these items as items belonging to him. As to the watch, Teddy Seymour gave evidence that on March 28, 2019 when a picture of the watch was shown to him by Ontario Provincial Police Constable Ryan Campbell, he identified it as belonging to him. When pressed in cross-examination at the trial with respect to the watch, Mr. Seymour testified that “it looks like Shawn’s”, but in the end was unable to say whether or not the watch was his son’s or not. With respect to the currency, Teddy Seymour testified that he does not know what other money was taken from his home, but he knows that the money he was shown and was found in Shaun Wilson’s jacket was his. In cross-examination Teddy Seymour testified that he got the currency from John Koper, but it was pointed out to Mr. Seymour that he testified that he did not know how he came into the possession of the $2 and $5 bills. Teddy Seymour’s explanation as to this inconsistency was that he “just started to remember where the money came from”.

[39] It is curious as to how the accused Shaun Wilson came into possession of a watch and the currency that was found in his jacket pocket in the trunk of the Sebring automobile. I have paid careful attention to this important piece of evidence in my overall assessment as to whether Shaun Wilson participated in the assault, break and enter and theft of goods from Unit 11, 141 Front Street, Spanish, Ontario, and whether on the totality of the evidence the Crown has proven the offences against Mr. Wilson beyond a reasonable doubt.

The Issue of an Alternate Suspect

[40] The issue of an alternate suspect, namely, Shawn Seymour, looms large in this case. The evidence describes a poor relationship and a sometimes-physical relationship between father and son. The evidence discloses that just days before the incident the son was outside Jammie Lynn Sherwin’s residing swinging a baseball bat, threatening to kill his father. The evidence discloses that after the police were called to Unit 11, 141 Front Street, Shawn Seymour and Jammie Lynn Sherwin were charged with offences related to what occurred to the father. Constable Jeffrey Timmermans testified that all the evidence, at that point in time, pointed to Shawn Seymour. As Officer Timmermans testified that there was a blood like substance outside Unit 5, that Mr. Seymour did not respond to requests by the police to leave his home and surrender to the police, and that there was a “history” between Shawn Seymour and his father. All roads led to Shawn Seymour. Officer Timmermans further testified that when Shawn Seymour was arrested that he had blood on him and that “there was something on Seymour’s shirt that was potentially blood”. The evidence discloses that Shawn Seymour was angry with his father. He had been kicked out of his father’s home by his father. His father was stalking Jammie Lynn Sherwin. This upset him. His father was befriending his 16-year-old girlfriend in exchange for drugs. This upset Shawn Seymour. There is evidence that on his arrest, Shawn Seymour had injuries to his hand. Although swabs of his hand were taken, they were not submitted to the Centre of Forensic Sciences. The evidence discloses that Shawn Seymour knew his father had cash in his residence and approximately one month before the incident he discussed with Jason Gamble, to the exclusion of Shaun Wilson, this cash and the possibility of robbing Teddy Seymour. We know from how the trial unfolded that although attempts were made by police authorities to locate Shawn Seymour and bring him to court to testify that he could not be located and therefore the court did not have the benefit of hearing his testimony or what could be gleaned from cross-examination.

[41] Suffice it to say that there is a viable, real, and reasonable possibility that Shawn Seymour was the other, smaller and more slightly built individual, who was with Jason Gamble on the morning of January 25, 2019 at Unit 11, 141 Front Street in Spanish, Ontario. The alternate suspect theory advanced by the defence has an air of reality to it based on the totality of the evidence led at the trial and it must be considered by the court in its overall assessment of whether I am satisfied beyond a reasonable doubt that it was Shaun Wilson with Jason Gamble at Teddy Seymour’s residence the morning of January 25, 2019.

Conclusion

[42] In their closing submissions to the court the Crown acknowledged that the case against Shaun Wilson is circumstantial. Both Crown counsel and defence counsel referred to the Supreme Court of Canada case of R. v. Villoroman, 2015 SCC 33, as the seminal case on how the court should assess circumstantial evidence. In that case the Supreme Court of Canada noted that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits and that instructing a jury accordingly is a succinct and accurate way of helping the jury guard against the risk of “filling in the blanks” too quickly, thereby overlooking alternate inferences. The court went on to note that if the evidence discloses reasonable inferences other than guilt, then the Crown’s evidence does not meet the proof beyond a reasonable doubt standard. Essentially, the Supreme Court of Canada directs the trier of fact to consider other plausible theories and other reasonable possibilities which are inconsistent with guilt when assessing circumstantial evidence.

[43] In the case at bar, an examination of the totality of the evidence results in inferences other than the guilt of Shaun Wilson. The evidence in this case points the finger of guilt to the victim’s son, Shawn Seymour, as much as it does to the accused, Shaun Wilson. Shawn Seymour had the motive and the opportunity to commit the offence against Teddy Seymour. That fact, combined with the lack of forensic evidence connecting the accused in any way to the crime scene and the very poor quality and frailties with the evidence of the Crown’s main witnesses on the issue of identity, lead this court to the inescapable conclusion that the Crown has not proven the guilt of Shaun Wilson beyond a reasonable doubt. The Crown has raised suspicions but only suspicions which can be explained by reasonable inferences drawn from the evidence adduced at the trial. In my view, where there is a plausible and reasonable alternate suspect as there is in the case at bar, it is dangerous for the court to convict in a circumstantial case. On the totality of the evidence it cannot be said that the only reasonable inference that the court can draw is the guilt of the accused. There are other reasonable inferences that can be drawn that do not support the guilt of the accused. Accordingly, the court is left with a reasonable doubt and the accused Shaun Wilson must be acquitted.

[44] In conclusion, for the aforementioned reasons, Shaun Wilson is found not guilty of counts 1 through 7 inclusive as set out in the indictment dated June 1, 2020.

Gareau J.

Released: October 13, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SHAUN PHILLIP WILSON

REASONS FOR JUDGMENT

Gareau J.

Released: October 13, 2021