



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dillon, 2018 ONCA 1085

DATE: 20181227

DOCKET: C63279

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Dillon

Appellant

Breana Vandebeek and Mark Halfyard, for the appellant

Caitlin Sharawy, for the respondent

Heard: December 21, 2018

On appeal from the conviction entered on October 26, 2016
    by Justice Drew S. Gunsolus of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted by Gunsolus J. of the Superior Court of
    Justice of pointing a firearm, possession of a firearm contrary to prohibition,
    possession of a firearm knowingly unauthorized, and operating a motor vehicle
    disqualified. He received a global sentence of nine months incarceration
    (after credit for pre-trial custody) and three years probation. He appeals the
    convictions.

[2]

There was a great deal of animosity between Ian Anthony and the
    appellant. Anthony and the appellant grew up as childhood friends in Bewdley.
    Anthony described his relationship with the appellant as initially like
    brothers. However, the relationship ruptured several years before the trial
    when the appellant had a one-night stand with Smith during a break-up between
    Smith and Anthony.

[3]

The appellant and Anthony never reconciled. Over the years, there were
    many verbal altercations and at least one physical incident that led to a
    conviction and jail time for the appellant.

[4]

On the evening of February 16, 2016 at approximately 7:40 p.m., the
    complainants, in their car, and the appellant, in his pick-up truck, met on the
    side of a road near Bewdley. Both complainants testified that after a heated
    verbal exchange between Anthony and the appellant, the appellant pointed a
    sawed-off shotgun at Anthony. Anthony testified that the appellant said that if
    Anthony followed him home, the appellant would shoot or kill him.

[5]

The appellant drove away. The complainants followed him to his home and
    then called 911. They met the police by a gas station on the outskirts of town.

[6]

The next day the police arrested the appellant and conducted a search of
    his home. They did not find a firearm.

[7]

The appellant did not testify at trial.

[8]

The trial judge accepted some aspects of the complainants evidence and
    rejected others. He found that Smith was an opinionated, sarcastic,
    argumentative witness, but was blunt, truthful and unequivocal in her
    evidence on the important and salient facts. He noted that her evidence at
    trial was not significantly at variance from her statements to the police or
    her testimony at the preliminary inquiry, nor was it significantly different
    from that of Ian Anthony. After considering all the evidence, the trial judge
    was satisfied that on the evening in question the appellant possessed a firearm
    and pointed it at Anthony.

[9]

The appellant appeals on four grounds.

[10]

First,
    the appellant contends that the trial judge failed to adequately consider, and
    give proper effect to, material problems and inconsistencies in the complainants
    evidence.

[11]

We
    do not accept this submission. The trial judge acknowledged inconsistencies
    between the complainants descriptions of relevant factors, including whether
    the shotgun was single or double-barrelled and the colour of the appellants
    clothing. However, he concluded:

While [Ms. Smiths] evidence differed on non-essential facts,
    it did not contradict that of Ian Anthony. They both described a sawed-off
    shotgun, they both saw it across Dillons lap, they both heard Dillon respond
    he was going to shoot Anthony, although as I said earlier, Ms. Smith said she
    did not really believe Dillon would actually do anything.

[12]

In
    our view, the trial judge was entitled to reach this conclusion.

[13]

A
    related component of this ground of appeal is the appellants claim that, in
    considering the credibility of the complainants, he failed to treat them as
Vetrovec
witnesses. The appellant says that the animosity between the appellant and
    the complainants was palpable and that this should have led the trial judge to
    self-instruct and apply
Vetrovec
to these two witnesses.

[14]

We
    disagree. The appellants submission is a bridge too far. The long and
    complicated history between the appellant and the complainants does not mean
    that the complainants were unsavoury or untrustworthy.

[15]

Second,
    the appellant asserts that the trial judge misapprehended the evidence relating
    to whether the meeting between the appellant was accidental or pre-arranged.

[16]

We
    do not accept this submission. The trial judge did not misapprehend the
    complainants evidence on this point; he rejected it. If anything, this inured
    to the benefit of the appellant.

[17]

Third,
    the appellant contends that the trial judge erred by relying on
R. v.
    Richards
, 2001 CanLII 21219 (Ont. C.A.) and
R. v. Charbonneau
, 2004
    CanLII 9527 (Ont. C.A.) in support of his conclusion that the appellant
    possessed a firearm. The fact that an item looks like a firearm and is used in
    a manner consistent with a firearm does not mean that it is a firearm. A
    crucial fact in this case is that the police did not find a firearm at the
    appellants home when they searched it the day after the incident.

[18]

We
    disagree. The trial judges analysis on this issue, concentrating on the
    complainants description of the item in question and the appellants conduct
    and words (he would shoot Anthony) while holding it, was entirely consistent
    with the test set out in
Richards
at para. 4 and
Charbonneau
at para. 3.

[19]

Fourth,
    the appellant submits that the trial judges verdict was unreasonable.

[20]

We
    disagree. The appellant candidly admits that this is not a stand-alone ground
    of appeal, it can succeed only if one of the other grounds of appeal is
    accepted. Accordingly, in light of our conclusions on the other grounds of
    appeal, this issue does not arise.

[21]

The
    appeal is dismissed.

J.C.
    MacPherson J.A.

G.
    Pardu J.A.

David
    Brown J.A.


