



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Place, 2020 ONCA 546

DATE: 20200901

DOCKET: C66760

Roberts, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Place

Appellant

Nicholas Place, acting in person

Richard Litkowski, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: August 12, 2020 by videoconference

On 
    appeal from the convictions entered on December 7, 2018 and the sentence imposed 
    on March 4, 2019 by Justice Diane M. Lahaie of the Ontario Court of Justice.

REASONS FOR 
    DECISION

[1]

The appellant was convicted of the offences of break and enter into a
    dwelling house, wearing a disguise with the intent to commit an indictable
    offence, mischief, assault, uttering threats to cause death, and breach of a
    probation order. He was given a global custodial sentence of 3 years and 45
    days, which reflected credit for 4.5 months for pre-sentence custody. Among the
    ancillary orders, the trial judge made a restitution order requiring the
    appellant to immediately pay the amount of $810.93 to the complainant, Daniel
    McLaughlin. The appellant appeals his convictions and sentence.

Brief Factual Background

[2]

Following the end of his romantic relationship with Jada
[1]
,
    with whom he parents a daughter, the appellant began to send numerous Facebook
    messages to Daniel McLaughlin, the domestic partner of Jadas best friend,
    Brooklyn Saunders. The appellant sent the messages under the alias, Nicholas
    Redd. In these messages, the appellant expressed his frustration, anger and
    jealousy concerning Jada. He accused Daniel McLaughlin, or other men known to
    Daniel, of being in a romantic relationship with her. The messages were
    threatening. As the trial judge found, [The appellant] was obsessively
    pursuing [Daniel] McLaughlin, communicating as time progressed that he was
    closer to finding him and that there would be a confrontation. Daniel
    McLaughlin attempted to placate the appellant, but he ultimately blocked him
    from sending further messages on Facebook the day before the appellants
    offences.

[3]

Learning of the appellants messages to his brother, Alex McLaughlin
    wrote to the appellant through the appellants other alias, Nick Laushway, 
    threatening to smash [the appellants] teeth down [his] throat. The appellant 
    and Alex McLaughlin engaged in a series of mutually aggressive Facebook messages 
    ending with the appellant writing to Daniel McLaughlin that he could come to 
    Alex McLaughlins home for a confrontation. Alex McLaughlin blocked the 
    appellant on Facebook two days before the appellants offences.

[4]

On September 22, 2017, while Daniel McLaughlin, his brothers, Alex and
    Jeffrey, and Ms. Saunders were in the kitchen at Daniel McLaughlins house,
    they noticed a car twice drive slowly by the house. Within approximately two
    minutes, the appellant kicked in the front door and entered the house. His face
    was covered with a bandana. He threw kitchen chairs and yelled at Daniel
    McLaughlin. Immediately, Daniel McLaughlin yelled out the appellants name. The
    two tussled and the appellant was brought to the ground by the McLaughlins. In
    the struggle, the appellants bandana slipped off. While on the telephone with
    the 911 operator, Ms. Saunders saw and recognized the appellants face. She
    testified that she also recognized his voice when he first entered the house 
    and yelled at Daniel McLaughlin. The appellant threatened to have his friends 
    come in with guns and shoot up the house if they did not release him. 
    Frightened, they did, and he ran out of the house. They watched him enter the 
    same car that had driven twice by the house, which then drove away.

[5]

The main issue at trial was identity. The trial judge was satisfied that
    it was the appellant who sent the Facebook messages under the two aliases to
    the McLaughlin brothers, broke into Daniel McLaughlins house, and committed 
    the other offences.

Issues

[6]

The appellant puts forward the following arguments on appeal.

[7]

He submits the trial judge made the following errors resulting in an
    unfair trial and unreasonable verdicts:

i.

The trial judge erred in her treatment of Ms. Saunders recognition
    evidence.

ii.

The trial judge erred in disregarding Ms. Saunders cross-examination to
    the extent it contradicted her evidence-in-chief.

[8]

The appellant raises the following issues with respect to his 
    sentence:

i.

The trial judge erred in failing to give any enhanced credit for his 
    restrictive bail conditions.

ii.

The trial judge erred in failing to give him any time to pay the
    restitution order.

Analysis

Conviction Appeal

[9]

We see no basis to overturn the appellants convictions.

[10]

Starting with the identification and recognition evidence issue, the
    trial judge was aware of the inherent frailties and dangers of eyewitness
    identification evidence. She reviewed the evidence of all the eyewitnesses with
    caution and rejected as unreliable the in-dock identification of the appellant
    made by Jeffrey McLaughlin and Alex McLaughlin. She did not accept all the
    evidence given by the McLaughlin brothers. She subjected Ms. Saunders evidence
    to careful scrutiny and did not accept her identification of the appellant
    simply because she recognized him. Rather, the trial judge was satisfied of
    the reliability of Ms. Saunders identification of the appellant on the
    basis of all her evidence, including that she had an excellent and clear 
    opportunity to see the appellant while he was on the ground without his bandana 
    and she provided a very detailed description of what she saw.

[11]

Most importantly, the trial judges conclusion that the appellant was the 
    person who committed the offences did not depend solely on Ms. Saunders 
    identification or recognition evidence but on the whole of the evidence,
    including: the appellants authorship and the threatening content of the 
    Facebook messages that he sent to the McLaughlin brothers; and the timing of his
    appearance at Daniel McLaughlins house and the end of the Facebook Messenger
    exchange caused by the McLaughlin brothers blocking the appellants messages a
    day or so before the incident.

[12]

We next turn to consider the trial judges treatment of Ms. Saunders 
    cross‑examination. The appellant submits that the trial judge erred in summarily 
    dismissing the inconsistencies between Ms. Saunders direct examination and 
    cross-examination. He argues that this dismissal materially undermined the 
    reliability of the trial judges identification of the appellant.

[13]

We are not persuaded by this submission.

[14]

The trial judge stated in her reasons that she placed no weight on any of 
    Ms. Saunders evidence in cross-examination where it differed from her
    examination-in-chief. She determined that it was unreliable because 
    Ms. Saunders was very upset during her cross-examination as the result of 
    the recent death of her sister and was simply agreeing with any suggestion put 
    to her by a very skilled and assertive defence counsel in order to be able to 
    leave.

[15]

While it would have been preferable if the trial judge had specifically
    reviewed all the inconsistencies in issue and explained why they did not affect
    her assessment of the credibility and reliability of Ms. Saunders 
    evidence-in-chief, it is clear from her reasons that she did not make this 
    determination on the basis of Ms. Saunders demeanour alone. When read as a 
    whole, the trial judges reasons, as supported by the record, set out a cogent 
    basis for her acceptance of Ms. Saunders identification of the appellant.

[16]

Moreover, we do not see the alleged inconsistencies as material. For
    example, the fact that Ms. Saunders was ultimately prepared to concede that the
    appellants hair as it appeared in the courtroom was more brown than reddish 
    is of no moment given her otherwise detailed description of the appellant at the 
    time of the offences over a year earlier and the little weight that the trial 
    judge correctly, in our view, gave to in-dock identification. Again, the trial 
    judges conclusion that the appellant committed the offences was not solely
    based on Ms. Saunders description but on all the trial evidence, including the
    evidence of the other witnesses and, more significantly, on the Facebook
    messages that preceded and foreshadowed the appellants arrival and actions at 
    Daniel McLaughlins house.

[17]

Accordingly, the appeal from the convictions is dismissed.

Sentence Appeal

[18]

The appellant submits that the trial judge erred in failing to give
    enhanced credit on sentencing for what she determined were restrictive house
    arrest conditions for some time from the beginning of October 2017 to December
    2018.

[19]

The trial judge determined that the appellants restrictive house arrest
    conditions were the result of [the appellants] criminal history and that it
    was not appropriate to grant any credit for the time spent on restrictive bail
    conditions given his criminal history. She concluded that the restrictive bail
    conditions were appropriate in all of the circumstances and that [the
    appellant] should not be given credit for the time [he] spent out of custody
    and subject to those conditions.

[20]

As this Court stated in
R. v. Downes

(2006), 79
    O.R. (3d) 321 (C.A.), at para. 33, it is an error in principle for a trial
    judge to fail to take into account as a mitigating circumstance in sentencing
    time spent under stringent bail conditions, especially house arrest. See also:
R. v. Ijam
, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 67.
The
    determination of enhanced credit is not the product of a formula but is within
    the discretion of the trial judge. In para. 37 of
Downes
, the Court
    set out a non-exhaustive list of criteria to be considered in determining this
    issue, including: the amount of time spent on pre-sentence bail conditions; the
    stringency of the conditions;
the impact on the offenders 
    liberty; and the ability of the offender to carry on normal relationships, 
    employment and activity
. The onus is on the offender to establish the 
    facts supporting the impact of the conditions on a balance of probabilities
in accordance with s. 724(3) of the
Criminal 
    Code
, R.S.C. 1985, c. C-46.

[21]

We see no error that would warrant appellate intervention. The trial
    judge did take into account the appellants stringent bail conditions and 
    determined that no enhanced credit should be given for those conditions in all 
    of the circumstances. While the appropriateness of the appellants bail 
    conditions was not a relevant consideration, it is clear that the trial judge 
    did not limit her determination to that criterion but reviewed all of the 
    circumstances. The question of how much enhanced credit for strict bail 
    conditions, if any, should be granted was firmly within the exercise of the 
    trial judges discretion. There is no error in the exercise of her 
    discretion.

[22]

Finally, we turn to the trial judges decision not to grant the appellant 
    any time to pay the restitution order to Daniel McLaughlin. While we see no 
    error in the exercise of the trial judges discretion, the Crown has consented
    to an extension of time for the payment of the restitution order. Accordingly,
    the appellant shall have one year from his release from custody to pay the 
    amount of $810.93 in restitution to Daniel McLaughlin.

[23]

The sentence appeal is otherwise dismissed.

Disposition

[24]

The appeal from conviction is dismissed.

[25]

The appeal from sentence is allowed with the consent of the Crown, to
    permit the appellant one year from his release from custody to pay the
    restitution order in the amount of $810.93 to Daniel McLaughlin.

[26]

The appeal from sentence is otherwise dismissed.

L.B. Roberts 
    J.A.

B.W. Miller 
    J.A.

Gary Trotter 
    J.A.





[1]

The trial judge does not refer to her
last
name.


