R. v. Nicolitsis, 2018 ONCJ 934

CITATION: R. v. Nicolitsis , 2018 ONCJ 934 DATE: September 11, 2018 COURT FILE No: 17-1311 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HER MAJESTY THE QUEEN -AND- MICHAEL FILIMON NICOLITSIS Before Justice Michael G. March Heard on June 20, 2018 Reasons for Judgment released on September 11, 2018 Caitlin Downing ………………………………………………………. Counsel for the Crown Cedric Nahum …………….………………………………….………. Counsel for the accused March, M.G., J. : Introduction: 1 . Michael Nicolitsis (“Nicolitsis”) stands charged that on or about the 6 th of October, 2017 he breached his Recognizance of Bail entered into by him on September 1, 2017 in two distinct ways:

a) by failing to abide by a curfew imposed between 7:00 p.m. to 3:00 p.m. (Count 1), and

b) by possessing and using a computer, or any other device having access to the internet or other digital network (Count 2), contrary to s. 145(3) of the Criminal Code of Canada (“the Code”). Nicolitsis entered pleas of not guilty to both counts. His trial on these charges proceeded before me on June 20, 2018. 2 . The Crown called a single witness, Ashley Scobie (“Scobie”). She was Nicolitsis’ next door neighbour at the time the breach of recognizance offences were alleged to have occurred. Nicolitsis was subject to an underlying charge from August 24, 2017 as well,

where Scobie was the complainant. There she alleged that Nicolitsis had threatened her. 3 . The defence called three witnesses, Tanya Gendron (Gendron), Nicolitsis’ spouse, his sister, Anna Nicolitsis (“A. Nicolitsis”) and Cst. Bennett of the Renfrew detachment of the Ontario Provincial Police. I shall touch briefly on the salient aspects of each of these aforementioned witnesses’ evidence. Review of the Relevant Evidence Ashley Scobie: 4 . On October 6, 2017, Scobie left to go to her place of employment, the Royal Bank in downtown Renfrew. She had been off work on maternity leave.

She was bringing her infant son for a visit with her co-workers. 5 . En route, Scobie saw Nicolitsis sitting on the steps of a private residence, 230 Argyle Street. Scobie was aware that Nicolitsis was to respect a curfew from 7:00 p.m. in the evening until 3:00 p.m. the following day. The only possible hours he could be away from his residence during curfew was if certain exceptions were met. Shortly after seeing Nicolitsis, Scobie contacted police upon her arrival at her place of employment. 6 .

Clearly, Scobie was so affected by the earlier incident from August 24, 2017, her husband decided to erect a plywood fence to block the neighbours, Nicolitsis and his family, from seeing her when she entered or exited her vehicle in her carport. Photos of the fence and carport were made Exhibit 3 at the trial. 7 . Further, on October 8, 2017, Scobie learned of certain posts from Nicolitsis’ Facebook account, which she believed were being directed at her.

The most concerning post was one time stamped October 6 at 10:37 p.m. which read: “Am blowing this up and posting it on my front lawn with this beside it real Paeple talk when there is a problem when u call the cops and lie and try to destroy a Family because you don’t like the look of them or how loud they are lso now I fence goes up u then the whole time I’m here it’s going to be nothing but making your life a living hell” 8 . Underneath the post, there is a photograph of a person’s hands with the middle fingers on each erect and visible above a fence.

In essence, that person is giving those over the fence the double finger. The text inscribed on the fence reads: “Like a good neighbour, stay the fuck over there.” 9 . Scobie also identified a post from Nicolitsis’ Facebook account from September 20, 2017 which stated: “So it’s Tanya am mikes wife mike can’t be on fb Cus of the lies the neighbour did to get them kicked out of his own home and away from his childreni’ll be checking this post and updating him every day please forgive him or not responding since he has conditioning going to be on but I’m his wife and there’s no condition to me.” 10 .

Then on October 6, 2017 at 10:06 p.m., Nicolitsis’ Facebook account contains the following post: “I love this woman so much, am a lucky man.” 11 . And further at 10:19 p.m.

“Am lucky to have this girl in my life. Tanya thanks for the wicked kids we have and hope the one coming is are girl Fingers crossed.” 12 . Under cross-examination, Scobie agreed that likely anyone who had Nicolitsis’ username and password could access his Facebook account. She did not check the posts which came to her attention on October 8, 2017 to see if there was an email address associated to the account. She thus could not say for certain that Nicolitsis authored and inputted any of the posts in question himself. 13 .

Scobie agreed as well that she and her family members did not share a good relationship with Nicolitsis and his. There was no way she could get in and out of her vehicle without the possibility of some form of confrontation occurring. However, it appeared to her to be a “crazy coincidence” that the posts made from Nicolitsis’ Facebook account happened to appear around the time of or not long after the plywood fence was erected in her carport. 14 . In re-examination, Scobie added that there seemed to be a logical flow in the nature of the commentaries made by the spouses, Gendron and Nicolitsis.

It looked to her as though Nicolitsis was responding to Gendron’s posts. Tanya Gendron: 15 . Gendron testified that Nicolitsis and she have been in a relationship for 10 years. They have six children together. She is a ‘stay at home’ mother. 16 . Gendron and Nicolitsis shared a residence at 211 McAndrew in Renfrew. She recalled that the first time Nicolitsis was criminally charged as a result of an incident involving Scobie, it was around the end of August or beginning of September in 2017. It was then that the conditions of curfew and no internet use were imposed.

Nicolitsis was also required to live with Brian Stants (“Stants”), a family friend, in the Ottawa area. 17 . Gendron did not recall exactly what she was doing on October 6, 2017. She believed she was at Shelley Beauchamps-Williams’ place in Renfrew. Nicolitsis had a note from Stants permitting him to be with her. She noticed while at Ms. Beauchamps-Williams’ residence that Scobie drove by. Nicolitsis and she were out on the front step having a smoke. They were together that day to babysit Ms. Beauchamps-Williams’ children. 18 . Gendron remembered that Nicolitsis had a note.

It permitted him to be with her, or his sister, A. Nicolitsis, or Ms. Beauchamps- Williams. Gendron was clear that on each and every occasion Nicolitsis was with her in Renfrew, he had such a note. A little while prior to giving her evidence on June 20, 2018, she “kind of threw” all the letters of permission out. 19 . Gendron stated that about ten minutes after Scobie drove by, she saw a police cruiser nearby. Nicolitsis and she had still not finished their cigarettes. The police vehicle parked nearby in the Salvation Army lot. She could not make out the face of the officer driving.

She is legally blind in her left eye. 20 . Gendron explained that Nicolitsis and she each have Facebook accounts. She has access to his. She has all of his passwords stored in her phone. When Exhibit 4 was shown to her, the September 20 th , 2017 post on Nicolitsis’ Facebook account, she confirmed she was the author. She wanted people to know why Nicolitsis would not be using Facebook as a result of being falsely accused and charged. 21 . On September 23, 2017, Gendron offered that she shared a photo from another Facebook user by the name of “Psychotic”.

It is the photo of the person’s hands giving both fingers to those on the other side of the fence – the same photo shared on Nicolitsis’ account on October 6, 2017 at 10:37 p.m. 22 . Later on September 27, 2017, she shared a post from a Facebook user account called Crazy-One, which depicts a human skull, and contains the caption “Don’t let your tongue get your teeth knocked out.” That same photo was reposted from Nicolitsis’ account on October 6, 2017 at 10:31 p.m. with the comment:

“Oohh this is fucken real talk.” Gendron explained that none of these posts were directed at anyone. 23 . She did go on to explain that in September of 2017, there was someone whom she did not wish to have around her or her children. His name was Larry. She perceived he was threatening her. She felt that if she posted certain things on Nicolitsis’ Facebook account, it might make Larry believe that her partner, Nicolitsis, was still around. 24 .

On September 22, 2017, Gendron shared another post from Psychotic’s account depicting a ‘monster like’ figure with exposed teeth and a poem which read: “Violets are blue And your blood is red Your window was open I’m under your bed”. 25 . Lastly, Gendron explained that Nicolitsis’ mother, Minerva Sonyal, has been in the hospital for the past three years. She suffers from dementia. On occasion, Nicolitsis used his Facebook account to communicate with Ms. Sonyal, as did his sister, A. Nicolitsis. 26 . Under cross-examination, Gendron clarified that A.

Nicolitsis has her own Facebook account, but mother and daughter, A. Nicolitsis and Ms. Sonyal, do not speak. A. Nicolitsis therefore uses her brother, Nicolitsis’ Facebook account to communicate with her mother. 27 . Gendron confirmed that she was aware of Nicolitsis’ conditions of release on October 6, 2017. A. Nicolitsis drove him to Renfrew that day to their house on McAndrew. He had letters from Stants to be with her, or A. Nicolitsis, or Ms. Beachamps-Williams. She kept all three in her wallet. 28 . She did not read the letters for Ms. Beauchamp-Williams or A. Nicolitsis.

She did not read hers either, but she did check it for Stants’ signature, name and the proper date. All of the letters Stants penned were similar. They were handwritten on lined paper. They allowed Nicolitsis to be out with certain people. They were addressed: “To whom it may concern.” 29 . Until December of 2017, Gendron claimed that she had had that October 6, 2017 letter in her possession. There were ten or so in total she had kept. She did not want to bring them with her when she moved. She did not believe she would need them. She was not thinking, and she threw them out.

She nevertheless realized that Nicolitsis was charged at the beginning of October 2017 for being away from Stants’ residence during curfew hours without written permission. 30 . Gendron was aware that Nicolitsis was arrested for breaching his curfew. She knew this fact since October 2017. She did not call police to tell them about the letter of permission of October 6, 2017. She never gave a statement to the police. She never told the authorities about the letter then in her possession. All the while, she appreciated that in her opinion, Nicolitsis had been wrongfully charged and held in custody for about a week.

The all important letter, she testified, she threw out by accident. 31 . She reiterated that the Facebook posts of concern were her doing. It was a simple matter to switch to Nicolitsis’ account. She needed only to press the icon of his face on her device. 32 . She recalled that there were times in the past, prior to October 6, 2017, when she was confrontational and aggressive with Scobie. On one such occasion, Gendron did give Scobie the finger. She explained it was not against the law to do so.

Cst. Bennett: 33 . Cst. Bennett testified that he received a call from Scobie on October 6, 2017. He did not recall going to her residence that day. He believed that they only spoke on the phone. 34 . On October 6, 2017 as well, he attempted to contact Stants. He left a voicemail message for him. 35 . Under cross-examination, Cst. Bennett explained that October 6, 2017 was a very busy day for the Renfrew Ontario Provincial Police. His notes indicated that Scobie called police at 13:47. He did not return her call until 15:41. Immediately after speaking with her, he called Stants.

He did not ever receive a reply from Stants, nor did he ever attend at 230 Argyle Street, the residence where Scobie saw Nicolitsis earlier that day. 36 . Cst. Bennett believed that Nicolitsis was arrested by Cst. Rebertz on October 11, 2017. At no point in time was Cst. Bennett made aware of a letter of permission from Stants for Nicolitsis to be out during curfew hours with a designate on October 6, 2017. Anna Nicolitsis: 37 . A. Nicolitsis is Nicolitsis’ sister. Their birthdays are 10 months apart. They are close. 38 . In October of 2017, A. Nicolitsis lived with Stants in the Ottawa area.

Nicolitsis resided with them for a few months. At that time when her brother was arrested in October of last year, A. Nicolitsis and Stants went to court for him. Police, she explained, gave different stories for why her brother was under arrest. She did not get the real reason until she spoke to Nicolitsis’ lawyer. She understood that her brother was charged for being out without a letter. 39 . A. Nicolitsis testified that every time her brother was in Renfrew, he had a letter of permission. There were maybe ten such letters granted to him. She would stop at Ms.

Beauchamps-Williams’ place and give her the letters. They generally read: “To whom it may concern, Michael Nicolitsis has my permission to be with ___________.” They would be dated. They would set out the times when he could be away. 40 . A. Nicolitsis knew that the charges respecting the breach of curfew laid against her brother were “baloney” because he was home with her in Ottawa on October 6, 2017. 41 . A. Nicolitsis went on to explain that she does, on occasion, use her brother’s Facebook account.

She knew that in October of 2017, some guy had made sexual comments to Gendron, her brother’s common-law partner. A. Nicolitsis wanted to say something on her brother’s Facebook account as a result. She would go on his account a lot – every other day. She gave evidence that she authored the posts made on Nicolitsis’ account following the one where Gendron explained why Nicolitsis would not be using Facebook as a result of being falsely accused and charged. These posts were made to offer support to Gendron, and to suggest Nicolitsis was still in the picture – and capable of protecting Gendron. 42 .

Under cross-examination, A. Nicolitsis confirmed that Nicolitsis was with her the day of October 6, 2017. He did not go to Renfrew. The posts she authored posing as her brother were done that day (October 6, 2017) as well. She took time to reflect and recalled in giving her evidence that October 6, 2017 was a Friday. She was then sure that Nicolitsis was with her in Ottawa that whole weekend (i.e. October 6 – 8, 2017) and he did not make any Facebook posts.

43. As far as the letters of permission were concerned, A. Nicolitsis testified that Stants wrote them whenever Nicolitsis required them. Nicolitsis did not need to keep them upon his release from jail. Nor did she. Her brother’s bail conditions, in her view, were thencancelled. ISSUES: 44. The evidence at trial raises two essential issues:

a) Has the Crown proven beyond a reasonable doubt that Nicolitsis was away from Stants’ residence on October 6, 2017 duringcurfew hours without written permission?

b) Has the Crown proven beyond a reasonable doubt that Nicolitsis accessed the internet or another digital network on or aboutOctober 6, 2017? THE LAW: Breach of Recognizance 45. Section 145(3) of the Criminal Code provides: “Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound tocomply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, tocomply with the condition, direction or order is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (

b) an offence punishable on

summary conviction.” 46. In R. v. Legere (1995), (ON CA), 95 C.C.C.(3d) 555, Laskin J.A. held that the offence of breach of recognizanceunder s. 145(3) of the Code: “. . .is a true criminal offence requiring proof of mens rea and the mere carelessness or failure to take precautions that a reasonableperson would take will not support a conviction.” 47. The Crown must do much more than show that an accused was negligent in carrying out a positive obligation imposed on him orher, which in Legere’s case was to have his bail papers on his person. Lawful Excuse 48.

Further, the words “without lawful excuse” do not impose an evidentiary or persuasive burden upon the accused. The Crown muststill prove the ‘mens rea’ and ‘actus reus’ of the offence. However, if the Crown does so beyond a reasonable doubt, a lawful excusemay add a defence or bar a prosecution. If the excuse is accepted by the trial court as a legitimate and reasonable explanation for theaccused otherwise being in breach of a bail condition, then a finding of not guilty must ensue. 49.

I note as well that section 794(2) of the Code reads: “The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the

defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption,proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information.” 50. Thus, in R. v. Goleski (2014), 2014 BCCA 80 , 307 C.C.C. (3d) 1 (B.C.C.A.), affirmed 2015 SCC 6 , [2015] 1S.C.R. 399, the Supreme Court of Canada held that an accused, who asserts a “reasonable excuse”, or similarly “a lawful excuse”, mustbear the burden of proving the factual (or legal) excuse on a balance of probabilities. The Rule in Browne v.

Dunn 51. In the oft quoted civil case of Browne v. Dunn [1893] CanLII 65 (FOREP), the English Court of Appeal established a rule ofconfrontation to respect the bounds of trial fairness.

Lord Herschell L.C. wrote: “Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intendedto suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogetherunchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been putto him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witnessunworthy of credit.

My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, togive him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professionalpractice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

Sometimes reflections have been made upon excessive cross-examination ofwitnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction ofexcess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness oftruth, I mean upon a point which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention toimpeach the credibility of the story which he is telling.

Of course I do not deny for a moment that there are cases in which that notice hasbeen so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it isnot necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of awitness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestionwhatever in the course of the case that his story is not accepted.” 52.

Clearly, where a party intends to impeach a witness, especially if that party intends to call contrary evidence to that given by thewitness, notice of that intention and some indication of what the contrary evidence will be should be given to the witness to provide anopportunity for him or her to explain, if possible, why his or her evidence should be preferred in the face of the contrary evidence. Where, however, the nature of the dispute is so manifest, there is no need to confront the witness slavishly with each aspect of thecontrary proof to be called by the witness’s opponent. ANALYSIS Breach of Curfew 53.

There is no dispute that Nicolitsis was seen by Scobie away from his residence on October 6, 2017. Scobie was clear that she sawhim at approximately 1:30 p.m. Cst. Bennett confirmed that her call to police was made at 1:47 p.m. Gendron in turn did not take issuewith what Scobie says she saw. Rather, Gendron contended that Nicolitsis’ presence with her on October 6, 2017 at 1:30 p.m. orthereabouts was permitted in writing by Stants. 54. As a matter of law and plain fairness, the defence has the burden of persuading the Court that this exception to the general rule hasbeen met.

On a balance of probabilities, I have not been so satisfied. 55. Firstly, Stants apparently went to court on October 11, 2017. Five days after the incident, he was available then, or shortly after, tomake some form of statement to confirm that the letter of permission was written by him for Nicolitsis to travel to Renfrew on October 6,2017 in order to be with his spouse at Ms. Beauchamps-Williams’ residence. Gendron testified the letter was in her possession. Yetneither Stants nor Gendron came forward to provide Nicolitsis’ counsel or the authorities with the proof to free Nicolitsis.

Instead, theyapparently left him to languish in jail unnecessarily following his arrest at Court on October 11, 2017. This makes no sense.

56 . Secondly, that letter of permission written by Stants to Gendron permitting Nicolitsis to be with her on October 6, 2017 ought to have been jealously guarded and safely kept by her. Assuming she distrusted the authorities, and was reluctant to turn it over, a copy could have been provided to police. The original could have been retained for trial. Her claim to have thrown it out is ridiculous. She understood the significance of that document since October, 2017. That she could have been so flippant in deciding not to take it along on the move to a new residence defies all logic. 57 .

Thirdly, the defence argues that the Crown could have subpoenaed Stants to determine directly from him whether a letter of permission was penned or not. I disagree. The Crown was under no such obligation. The defence could equally have subpoenaed Stants. The defence plainly misunderstood whose obligation it was to prove the exception. It certainly was not the Crown’s.

The defence suggestion that Stants had to work and therefore could not attend court for Nicolitsis’ trial, although plausible, does not provide relief from the burden of proving the exception to the curfew Nicolitsis was under a legal obligation to respect. 58 . Fourthly, A. Nicolitsis’ evidence stands in stark conflict with Gendron’s. A. Nicolitsis puts Nicolitsis in Ottawa with her on October 6, 2017. Her memory is clearly lacking on a most pivotal day for her brother. A.

Nicolitsis’ claim that her brother always had a letter of permission when he visited Gendron in October, 2017 is fatally undermined as a result. 59 . For these reasons, I am satisfied beyond a reasonable doubt that Nicolitsis breached his curfew on October 6, 2017 at approximately 1:30 p.m. He clearly intended to be and was away from Stants’ residence that day. Scobie saw him. Gendron confirmed he was with her. He did not demonstrate on a balance of probabilities that he had Stants’ written permission to be out during curfew hours. I must therefore find him guilty on Count 1.

Breach for Accessing the Internet or Digital Networks 60 . Nicolitsis’ Facebook entries from October 6, 2017, and on earlier dates as well, demonstrate that while he was subject to a prohibition from accessing such a digital network, his account was used to do so. The posts in questions (Ex. 2), Gendron and A. Nicolitsis claim they made. I do not believe them. 61 . While I do entertain a reasonable doubt that Gendron may have been responsible for the September 20, 2017 Facebook post at 12:37 a.m. on Nicolitsis’ account, I do not accept that the comments made in response to that post were A. Nicolitsis’ doing.

The story of Larry, the threatener, is fanciful. It is an invention to explain Nicolitsis’ posts at a time when he was likely with Gendron (October 6, 2017) and being shown what she had written on September 20, 2017. They sound exactly like what a man who loves his wife would say – not what the sister of that man pretending to be him would author. They do not address any warning to Larry to stay away. Indeed, they do nothing to suggest that Nicolitsis is living with or near Gendron, and that he is ready, willing and able to protect her at a moment’s notice. 62 .

Further, the posts which were made Exhibit 2 at the trial, the fence and the photograph of the hands ‘flipping the bird’ to those on the other side, and the reference to what a good neighbour should do are aimed at Scobie. Again on October 6, 2017, at 10:31 p.m. it is Nicolitsis who shares this post from Psychotic, the same one Gendron had already shared on September 23, 2017 at 2:22 a.m. The message Nicolitsis authored about the photo spoke to his intentions. He wanted to make Scobie’s life, and that of her family, a “living hell.” He was continuing to intimidate and threaten her. 63 .

The content of that public message sent out via Facebook on October 6, 2017 at 10:37 p.m. was Nicolitsis’ declaration of the revenge he intended to exact from Scobie and her family. He was an angry man. He felt unjustly uprooted from his spouse and children. He was letting Scobie know that there would be payback for her having called the police. The caption “Don’t let your tongue get your teeth knocked out” spoke squarely to the contempt Nicolitsis held for Scobie. 64 . Gendron and A. Nicolitsis knew what Nicolitsis’ conditions of release were.

It is nonsensical that they would use his Facebook account at a time when they were well aware he was prohibited from using it. Gendron loves her spouse. A. Nicolitsis loves her brother. They would be loath to do anything to place him in any greater jeopardy than he already was as of August, 2017. 65 . Upon a fair assessment of the whole of the evidence adduced at trial, the only reasonable inference I can draw is that Nicolitsis himself continued to make Facebook posts in spite of his Recognizance dated September 1, 2017 prohibiting him from using a device with access to the internet.

Accordingly, having found that Nicolitsis accessed his Facebook account on October 6, 2017, inputted

messages and shared others’ posts, I must find him guilty on Count 2 as well. The Rule in Browne v. Dunn 66 . It is incumbent upon me to make a few comments on the argument made by the defence that the Crown ought to have confronted both Gendron and A. Nicolitsis that they were “lying” about:

a) witnessing a letter of permission for October 6, 2017 from Stants, and

b) using Nicolitsis’ Facebook account. 67 . Firstly, it is perhaps somewhat trite, but the supposed letter of October 6, 2017 was what was most material for this trial. There really was no need for the Crown to confront. At the conclusion of Gendron’s evidence-in-chief, it was clear that the Crown could not call any contrary evidence about Gendron’s assertion of having had the letter. The letter no longer existed. Gendron threw it out. All the Crown could challenge was Gendron’s and Nicolitsis’ claim to the existence of the letter. 68 .

Secondly, I fail to see how I could have been assisted, as the trier of fact, by the Crown confronting Gendron and A. Nicolitsis that they were liars. Surely, they would have denied the suggestion. To do otherwise would have exposed them as perjurers. 69 . Both women were under oath or solemn affirmation to tell the truth. For the Crown to suggest they were liars would have been a fruitless exercise in the same way it would be if the defence were required to suggest Crown witnesses are liars. The exchange between counsel and witness would devolve into: Counsel: Q. I suggest you are lying? Witness: A.

No, I am not. Counsel: Q. Yes, you are. Witness: A. No, I am not. No truth finding purpose can be served by this silly loop. Nor is their failure to respect any evidentiary rule designed to protect trial fairness, if such a futile question is not posed. 70 . The key to understanding the rule in Browne v. Dunn is confronting a witness with contrary evidence. The Crown in this case had no contradictory evidence to show that letters did not exist, or that Gendron and A. Nicolitsis were being dishonest about accessing Nicolitsis’ Facebook account.

Quite properly, the Crown left it to the Court to decide, on the application of logic and common sense, whether Gendron’s and A. Nicolitsis’ evidence was truthful or raised a reasonable doubt. Unfortunately for Nicolitsis, their evidence did not. Conclusion 71 . I have no difficulty, upon a fulsome review of the evidence called at Nicolitsis’ trial, in concluding that the Crown has proven his guilt beyond a reasonable doubt on both counts of breach of recognizance for which he was tried. DATED: September 11, 2018 ________________________________

The Honourable Mr. Justice M. March