Court File and Parties
Court File No.: CR-24-40000500-0000 Date: 2025-08-07 Ontario Superior Court of Justice
Between: His Majesty the King – and – Thomas Arnold Galbraith
Counsel: Christine Jenkins and Meghan Scott for the Crown Jocelyn Heaton for the Respondent
Heard: July 31, 2025
Before: Rhinelander, J.
Reasons for Judgment
Background
[1] Mr. Galbraith entered pleas of guilty to two counts of breaching his probation orders by failing to abide by boundary and contact conditions on January 23, 2025.
[2] On February 4, 2025, Mr. Galbraith was convicted after trial with a jury of the following offences against Dawn O'Nanski:
(i) Assault by choking, suffocating, or strangling (Criminal Code s. 267(c)) (ii) Assault causing bodily harm (Criminal Code s. 267(b)) (iii) Unlawful confinement (Criminal Code s. 279) (iv) Criminal harassment (Criminal Code s. 264)
[3] Mr. Galbraith was found not guilty of uttering a threat to cause death to Ms. O'Nanski.
[4] The Applicant seeks a judicial determination of the facts that may be relied upon by Dr. Klassen for purposes of a s. 752.1 assessment and for purposes of sentencing.
[5] The Respondent is opposed to findings of fact that extend beyond what was necessary for the jury's verdict and argued that the Crown must prove such aggravating facts beyond a reasonable doubt.
Issues
Are the following sufficiently credible and reliable to be aggravating factors on sentence?
[6] The Respondent identified five areas that were not sufficiently credible and reliable to be found as aggravating factors on sentence. These are:
(a) That it was Mr. Galbraith who first contacted Ms. O'Nanski; (b) That they saw each other on more than one occasion prior to March 8, 2024; (c) That it was Mr. Galbraith who told Ms. O'Nanski of his mother's passing as opposed to Ms. O'Nanski informed him of his mother's death; (d) That it was Mr. Galbraith who invited Chris to join them; and (e) That Chris left because he felt unwell, as opposed to Ms. O'Nanski insulting him.
Did Ms. O'Nanski tell Mr. Galbraith to leave her alone after the incident at the convenience store?
[7] The Respondent challenged the summary sought to be relied upon by the Applicant regarding Ms. O'Nanski's exchange with Mr. Galbraith after an incident at the convenience store. The Respondent's position is Ms. O'Nanski did not testify that "she told him to leave her alone" but that she "wanted" him to leave her alone. Nor did she tell him to leave.
Applicable Principles
[8] Pursuant to section 724 of the Criminal Code, it is the responsibility of the sentencing judge to determine the material facts for sentencing after a jury trial, as juries do not provide reasons for their verdicts: R. v. Aragon, 2022 ONCA 244, para. 104.
[9] Section 724 of the Criminal Code reads:
- (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.
[10] This leads to a two-step process that requires the sentencing judge to (i) identify any relevant factual determinations the jury made by examining what facts were essential to the jury's verdicts, and then apply those facts when sentencing the offender; and (ii) where facts were not expressly or necessarily implicit in a jury verdict, it will be necessary for the judge to engage in their own independent fact-finding exercise: R. v. Aragon, para. 106.
[11] A sentencing judge is required to come to their own independent determination of relevant facts and should not attempt to follow the logical process of the jury: R. v. Ferguson, 2008 SCC 6, para. 18. A sentencing judge is not required to assume the jury took the "most lenient path to conviction": R. v. Nelson, 2014 ONCA 853, para. 56; R. v. Ferguson, para. 22. I must, however, be satisfied of the existence of the fact beyond a reasonable doubt to rely on an aggravating factor.
Analysis
[12] Applying the above legal principles, I consider the evidence heard by the jury to make findings regarding the issues identified by the parties.
[13] The Respondent does not dispute that the jury rejected his evidence and after assessing his evidence in the context of all the other evidence, it did not leave the jury with a reasonable doubt. The jury was satisfied the Applicant had proven all essential elements beyond a reasonable doubt on the counts which they found him guilty.
[14] The Respondent argued that Ms. O'Nanski's evidence was not sufficiently credible and reliable for this court to find as aggravating; that it was Mr. Galbraith who first contacted Ms. O'Nanski; that they saw each other on more than one occasion prior to March 8, 2024; and that Mr. Galbraith informed Ms. O'Nanski of his mother's passing.
[15] Ms. O'Nanski testified she had not heard from the Respondent for approximately a year because he was in custody. She received a phone call from an unknown number in early March. The caller identified himself as the Respondent and he was enroute to her residence. The Respondent arrived and stayed for 48 to 72 hours. During this time, they engaged in sexual activities and spoke. The Respondent returned to Hamilton to collect belongings to store them in her locker so everything would be in one place. The Respondent called her enroute to her place on March 8, 2024, and advised her that his mother had passed. She believed that it was his friend "Danny" who told him his mother passed. Ms. O'Nanski met the Respondent in the lobby of her building. He had already been drinking and brought alcohol with him. At some point that evening, the Respondent began to spiral and concerned for her safety, Ms. O'Nanski called 911. The Respondent left prior to police arriving.
[16] The Respondent testified he was released from custody on February 11, 2024, and had stayed with his friend, Danny, since his release. The Respondent testified that his phone number was the same number he had for years. He had not contacted Ms. O'Nanski or made any efforts to do so since his release. On March 8, 2024, he received a call from her informing him that his mother had passed. He denied seeing her prior to that date and was adamant that he only learned of his mother's death from Ms. O'Nanski. He disagreed with the suggestion that he informed Ms. O'Nanski of his mother's death.
[17] In determining the facts to be relied upon for purposes of sentencing, I must make findings on these issues. As in all cases, the court must assess the credibility and reliability of the evidence of the witnesses. Credibility relates to the honesty or veracity of a witness, whether the witness is expressing themselves truthfully to the best of their ability. Reliability relates to the accuracy of a witness' testimony - whether a witness has a strong recollection and memory of the event, whether they can recount details, and whether they are accurate.
[18] In assessing the credibility of a witness, I must consider any inconsistencies in their testimony whether internal or with prior statements. Inconsistencies on minor matters may be of less importance and not affect the credibility of a witness. However, inconsistencies that impact material issues can lead to a finding that a witness is not credible or reliable.
[19] Mr. Galbraith testified at trial. In assessing his evidence, I am entitled to consider it in the context of all of the other evidence. This is not a credibility contest in which the court picks the version of events it prefers more. The trier of fact's task is not to choose between the two competing versions of events: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9.
[20] Having considered the evidence the jury heard, I do not find the Respondent credible or reliable. I have focused my reasons on the areas identified as being in issue set out in (a) to (c), without pointing to other areas of the Respondent's evidence that cause concern and were internally inconsistent between his examination-in-chief and cross-examination. Mr. Galbraith's evidence was inconsistent on several points that go directly to the issue of who contacted who first. Some examples of concern are:
Mr. Galbraith testified he heard from others Ms. O'Nanski was trying to contact him since his release. She had been calling his siblings, friends, mother, and friends of his mother trying to find him. Throughout this time his phone number was the same as it had been prior to his incarceration. It was a phone number he had for years.
His phone had not been topped up until March 8, 2024, so there were no minutes or time on his phone.
Mr. Galbraith later explained his phone could not hold a charge, so that was why Ms. O'Nanski could not get through to him and was calling others.
Mr. Galbraith testified he had options to get another phone but did not want to buy one because he could not afford to at that time. Mr. Galbraith's source of income at the time was WSIB. He had only received the equivalent of one-half a month due to his release.
In cross-examination he testified that he had continued collecting these funds while in jail and agreed he had money to burn including taking a taxi to Toronto on more than one occasion at a cost of approximately $150 per trip. This contradicted his earlier evidence-in-chief that he could not afford to get a new phone.
His evidence throughout the trial was he purchased alcohol and cigarettes, earrings for Ms. O'Nanski, and other sundry items, in addition to cab fares to Toronto.
His evidence regarding the phone was further contradicted when confronted with text message exchanges between himself and Ms. O'Nanski. When asked about a reference to the "other phone", he responded "my mom's phone or this phone?" One of them won't keep a charge". His earlier evidence when questioned by his counsel was his phone did not keep a charge. One would have thought he would have recalled it was his phone that did not hold the charge as that was the reason he provided for why Ms. O'Nanski had to call almost everyone in his circle trying to find him after his release from custody had that been the truth.
[21] The Respondent argued Ms. O'Nanski is not credible and reliable on several issues and pointed to specific areas of Ms. O'Nanski's evidence where she displayed dishonesty such that the court should have concerns. This included the following testimony:
Ms. O'Nanski testified she did not know the Respondent's sister very well and did not have her phone number. In cross-examination it was established Ms. O'Nanski did have her phone number and left her a voice message on or about March 15, 2024.
Ms. O'Nanski testified she was sad about the death of the Respondent's mother and would not have made light of it. This was contradicted by the content of the voice message left for the Respondent's sister.
Ms. O'Nanski testified she would not have threatened to cause harm to the Respondent's sister's family. This was contradicted by the content of the voice message left for the Respondent's sister.
Ms. O'Nanski denied being in a relationship with Mr. Galbraith yet identified herself as his girlfriend in the voicemail for his sister.
Ms. O'Nanski testified she would not have offered to have drinks with the police when they attended on or about March 27 to 28, 2024. This was contradicted by the footage from the police body worn cameras.
Ms. O'Nanski sought to minimize the relationship between her and the Respondent including her role in continuing the relationship.
[22] Despite Ms. O'Nanski's assertions she had never been untruthful in her life, the above are examples that contradict this statement.
[23] When confronted with the voice message, Ms. O'Nanski immediately identified her voice on the message left for the Respondent's sister and was apologetic. She explained she was clearly intoxicated in that message and did not remember having left the message.
[24] Regarding the comments made to the police regarding having a drink, Ms. O'Nanski acknowledged making the statement after seeing the footage but had no recollection of those comments. She did not provide an explanation other than the comment was said in jest and was not meant to be serious. When considering the circumstances under which the comments were made, and other evidence before the court regarding Ms. O'Nanski's demeanour, including testimony that she appeared to be in shock and was having difficulty speaking and breathing and officers were focused on trying to calm her down, it is understandable that she may not have remembered making those comments and it was clear it was not meant to be acted on.
[25] There were portions of Ms. O'Nanski's testimony where she became very testy and non-responsive to questions put to her in cross-examination. However, where possible, Ms. O'Nanski tried to minimize and protect the Respondent where she could, including not cooperating with police and not wanting to testify against him. She acknowledged she cared for the Respondent despite the toxicity of the relationship. Like a moth to a flame, she allowed herself to be continually drawn in to the Respondent with words of endearment exchanged.
[26] In assessing the credibility of a witness, I must consider any inconsistencies in their testimony whether internal or with prior statements. Inconsistencies on minor matters may be of less importance and not affect the credibility of a witness. However, inconsistencies that impact material issues can lead to a finding that a witness is not credible or reliable.
[27] The Supreme Court of Canada in R. v. Kruk, 2024 SCC 7 provides guidance to judges when assessing the credibility and reliability of witnesses. Martin J.A., writing for the majority and reviewing earlier decisions, held that "testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence" (see para. 72). This includes relying on reason and common sense, life experience, and logic in assessing credibility.
[28] I may believe all, some, or none of the testimony of a witness, including an accused person. In this case, I am satisfied with Ms. O'Nanski's explanations and other evidence surrounding the circumstances as to why she may have forgotten or had no recollection of the events and comments set out above.
[29] On the issue of who contacted who first, Ms. O'Nanski's evidence was clear and unwavering. Her testimony that they had been together for a few days prior to the 911 call on March 8, 2024, was unchallenged.
[30] I find that the Respondent contacted Ms. O'Nanski first. I find that they were together in the days preceding March 8, 2024. I further find that Mr. Galbraith informed Ms. O'Nanski of his mother's passing.
[31] During oral argument, both the Applicant and the Respondent acknowledged that nothing really turns on items (d) and (e). The Applicant further advised they were not seeking to rely on (d) and/or (e) as aggravating factors. A determination of how the male joined them and left the apartment is not an essential element of the offences nor is it an aggravating factor the Crown seeks to rely on for sentencing. Based on this acknowledgement, the parties were satisfied with and agreed that Ms. O'Nanski and Mr. Galbraith bumped into or met Chris in the lobby. He joined them in the apartment where they all drank and smoked marijuana. At some point, Chris left with Mr. Galbraith.
[32] I turn now to the issue regarding the inaccuracy of the summary of Ms. O'Nanski's evidence about the exchange between her and the Respondent at the convenience store.
[33] Having reviewed the evidence, it is clear Ms. O'Nanski testified in examination-in-chief that, "Tom tried to console me and I just asked him to go away, in not such a nice way." Later in cross-examination, Ms. O'Nanski testified that she told Mr. Galbraith to "get away from me", that she "did not want him around me, and then he fled". She explained she thought Tom fled because he thought she was going to call the police and report it and he was not supposed to be with her.
[34] Based on this, I find that Ms. O'Nanski told Mr. Galbraith to go away and to get away from her. She made it clear she did not want Mr. Galbraith around her, at which time he fled.
[35] A draft statement of facts was relied on for purposes of argument. I have modified the document to accord with my findings and have attached it as Appendix A to my reasons for purposes of sentencing and the assessment of Dr. Klassen.
Appendix A: Factual Findings for Sentence
Thomas Galbraith and Dawn O'Nanski began an intimate relationship in September 2018.
The relationship was "on and off" with Mr. Galbraith perpetrating violence against Ms. O'Nanski. This resulted in several convictions and probation orders with no contact conditions: January 5, 2021, December 30, 2021, August 31, 2023.
Sometime in early March of 2024 Mr. Galbraith contacted Ms. O'Nanski unexpectedly. She had not seen him for over a year because he had been incarcerated for offences committed against her. He was released February 11, 2024. He attended at her apartment at 510 Dawes Road, Toronto. Ms. O'Nanski still had feelings for Mr. Galbraith and considered herself his friend.
After arriving at Ms. O'Nanski's apartment both consumed alcohol and engaged in sexual activity. He stayed for a couple of days then returned to Hamilton. They discussed him moving his belongings to her apartment. Ms. O'Nanski was not opposed as she wanted to keep their relationship amicable and be a supportive friend. She had a locker unit he could use to store his stuff and keep it all together.
On March 8, 2024, Mr. Galbraith called Ms. O'Nanski on his way back to Toronto and advised that his mother had died. At Ms. O'Nanski's apartment both drank alcohol and smoked marijuana. At some point they were talking about his situation, and he started to "spiral". She believed Mr. Galbraith wanted to get physical with her. Ms. O'Nanski told him she was concerned, and that he should leave. She went to get her phone and he began controlling her movements by blocking her and nudging her with his shoulder and walking with a puffed chest with his hands in his pockets. He said, "I'm not hitting you," and called her a "fucking bitch". She felt intimidated, concerned, worried and at fault. She knew he was on court orders to have no contact with her. Ms. O'Nanski told him to leave two or three times and he refused. Ms. O'Nanski was able to call 911 and was heard yelling at him to leave eight times. Mr. Galbraith left before the police arrived. Ms. O'Nanski reported to the police that Mr. Galbraith was at her apartment. She did not have any intention of seeing him again but knew he would be in touch with her. She stayed with a friend for two to three days after he left, as she suspected he would return.
Ms. O'Nanski saw Mr. Galbraith again in mid-March. She was assaulted by another woman in a store and thought he had something to do with it. Mr. Galbraith tried to console Ms. O'Nanski and she told him to go away, not in a nice way. Ms. O'Nanski told him to get away from her and that she did not want him around her, after which he fled.
At the end of March Mr. Galbraith returned to Ms. O'Nanski's apartment. He told her he would bring her belongings from his mother's house, but only brought her one mirror. They ended up hanging out, chatting, and drinking for a few days.
On the evening of March 27, 2024, Ms. O'Nanski and Mr. Galbraith met a male identified by the name of Chris in the lobby who also lived in the building. He attended at the apartment with them where they all drank and smoked marijuana. At some point, Chris left with Mr. Galbraith.
Mr. Galbraith was gone for a while before returning and going to Ms. O'Nanski's bedroom. The next memory she had was Mr. Galbraith strangling her on the bedroom floor as she was on her back. He "mashed" her head on the floor. She fought back and bit his hand. He told her that because she drew blood, he had to draw blood and he headbutted her. Her nose began to bleed. He continued to assault her by slapping her, choking her, and covering her mouth with his hand. He pulled a clump of hair out of her head. She asked him why he was doing this, and he said, "if I'm going back to jail it's for a good reason" and "I'm doing this because you don't love me." She had trouble breathing and lost consciousness. Her next memory is Mr. Galbraith saying, "there she is, atta girl, there she is, here you come". He blocked the bedroom door with the bed and confined her in the bedroom. She called out for help, and tried to call police at one point, but he wrapped his arms around her head and neck. He took her phone from her and threw her back onto the floor.
In the early morning hours of March 28, 2024, a neighbour in the apartment below heard Ms. O'Nanski yelling for help and called 911. The police knocked on the door and Mr. Galbraith released Ms. O'Nanski. Upon opening the door police observed Ms. O'Nanski in distress and crying. She had marks on her face and neck and a bump to her head. Her nose was swollen and bloody. Her hair was tangled, and she had a pair of scissors hanging from it. She identified Mr. Galbraith as the person who assaulted her but became hostile and uncooperative with the police. She refused to provide a formal statement. Mr. Galbraith was arrested without incident. He had a bite mark to his hand.
Ms. O'Nanski was seen by paramedics but refused to go to hospital. She was ultimately diagnosed with a fractured finger and broken nose.
Ms. O'Nanski testified that "I am always fearful when I am with him". She believes he is a "loose cannon" and when she is with him, she attempts to keep him at bay. He seeks her out and although she wanted to break off their relationship after only three months, he continued to contact her despite court imposed no contact orders. His conduct between March 8 – 28, 2024 was threatening. Attending her apartment, refusing to leave until 911 was called, forcibly confining her, and violently attacking her have caused her fear. She testified that she believes that "Tom will kill me one day".
Released: August 7, 2025 Rhinelander, J.