R. v. Frail, 2019 ONCJ 952

CITATION: R. v. Frail , 2019 ONCJ 952 DATE: June 26, 2019 Information No. 3211-998-18-1260-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DANNY FRAIL R E A S O N S F O R J U D G M E N T BY THE HONOURABLE JUSTICE K. L. McKERLIE on June 26, 2019 at STRATFORD, Ontario APPEARANCES : G. Christakos Counsel for the Crown M. Fair Counsel for Danny Frail WEDNESDAY, JUNE 26, 2019 McKERLIE, J. (Orally): The accused, Danny Patrick Frail, is charged with the following October 27 th , 2018 offences: 1 . By telephone, uttering a threat to the 911 operator to bomb Gilly’s Pubhouse, contrary to

Section 264.1(1) (

b) of the Criminal Code . 2 . Without legal justification or excuse and without colour of right, committing mischief by wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of Gilly’s Pubhouse, contrary to Section 430(1) (

c) of the Criminal Code . 3 . Breaching the term of his July 10 th , 2018 probation order that required him to keep the peace and be of good behaviour, contrary to

Section 733.1(1) of the Criminal Code . 4 . Committing public mischief in that with intent to mislead, he caused Stratford Police Service Constable Siraj to enter into an investigation by reporting that the offence of intent to cause explosion had been committed when it had not been committed, contrary to Section 140(1) (

c) of the Criminal Code . 5 . At approximately 11:19 p.m., the 911 operator received a call from a male person stating, “There’s a bomb going to go off at Gilly’s Sports Bar in about 20 minutes.” The sole issue on this trial is whether the Crown has discharged its onus of proving beyond a reasonable doubt that the accused, Danny Patrick Frail, was the person who made the bomb threat. If identity is proven beyond a reasonable doubt, the defence concedes that the essential elements of each of the four offences have been established.

In addition to the 911 call, the Crown’s case consisted of the testimony of Raymond Coddington, who was the doorman on duty at Gilly’s Pubhouse, and the testimony of Stratford Police Service Constables Siraj, Otten and Welsch. The defence did not call any evidence. The un-contradicted trial evidence of the doorman at Gilly’s Pubhouse, Ray Coddington, established that: o At the start of his 10:00 p.m. shift, he observed Mr. Frail inside the establishment notwithstanding that Mr. Frail had been banned from the premises several weeks earlier because of his behaviour. o Mr. Coddington waited until Mr.

Frail exited the premises to smoke a cigarette and then reminded him that he was not welcome and would not be permitted to re-enter. Mr. Frail was calm at first, but over the course of a half hour he became more agitated and more than once tried to re-enter the premises, saying that he had to talk to his girlfriend, who was still inside. o Mr. Coddington did not permit Mr. Frail to re-enter the premises. o Mr. Frail told Mr. Coddington that he would call the police. Mr.

Coddington replied that he was more than welcome to call the police, because then the police would remove him and he would not have to deal with him anymore. o The third time Mr. Frail attempted to enter the premises, he was very agitated. Mr. Coddington told him to go home. Mr. Frail then said words to the effect that he was going to “fix the business” by calling in a bomb threat. Mr. Frail then left the area. o Within 10 to 15 minutes, the first fire truck arrived on scene. Mr. Coddington had not called 911. He learned from the firefighters that a bomb threat had been received. The police also arrived on scene.

Mr. Coddington helped clear the customers from the bar. It was a busy night. He estimated that there were approximately 100 people in the bar. o While Mr. Coddington was standing outside with customers who had been cleared from the bar, he saw Mr. Frail with his girlfriend across the street by Coffee Culture. Mr. Coddington pointed out Mr. Frail to the police as “the guy who told me he was going to call in a bomb threat”. o Mr. Frail walked back across the street toward another nearby bar called The Hub. Mr.

Coddington confirmed that he was 100 percent certain that this was the man who told him that he was going to call in a bomb threat. Mr. Coddington then watched as the officers followed Mr. Frail into The Hub. He next saw Mr. Frail coming out of the bar in handcuffs.

The un-contradicted trial testimony of Stratford Police Service Officers Siraj, Otten and Welsch established that: o The 911 operator received the call from a male person stating, “There’s a bomb going to go off at Gilly’s Sports Bar in about 20 minutes.” The Fire Department was dispatched at 11:19 p.m. and in turn contacted the police to attend as well. o Investigation revealed that the 911 call was placed from a payphone outside a convenience store on Erie Street, several blocks away from Gilly’s Pubhouse. o When the police and firefighters evacuated the bar, Mr.

Frail’s girlfriend was one of the last patrons to leave. Officers estimated that there were about 100 people standing outside the bar. Those people were directed over to Market Square. The police also evacuated the Pizza Pizza restaurant next door, and the tenants who lived in residential apartments over both Gilly’s Pubhouse and Pizza.

o The police thoroughly searched the bar and did not find any explosives or suspicious items. o When Mr. Coddington identified Mr. Frail to the police, the police followed him to The Hub and placed him under arrest at 12:16a.m. Mr. Frail was described by the arresting officer as mildly intoxicated. o On the date in question, the three police officers listened to the 14-second 911 call recorded by dispatch. o Constable Siraj testified that this occurrence had been his first face-to-face interaction with Mr. Frail. He testified that the voice onthe 911 call sounded exactly like Mr.

Frail, especially in that state of mild intoxication. o Sergeant Otten testified that, based on his previous interactions with Mr. Frail and his interactions with Mr. Frail during thisoccurrence, the voice on the 911 call sounded like Mr. Frail. He noted that it was not a low, deep voice. o Constable Welsch did not recognize the voice on the 911 call. He testified that he would know Mr. Frail to see him, but had not heardhim speak much. The evidence of the police witnesses clearly established that the false bomb threat call was a significant drain on resources of firstresponders on a very busy night.

Two fire trucks responded. There were at least eight firefighters on scene, as well as five policeofficers, being all of the officers on shift. In addition to evacuating patrons from Gilly’s, Pizza Pizza and the tenants in the apartmentsabove those businesses, the officers also had to ensure the safety of patrons at the Avon Theatre across the street. This was not the onlycall for service that night. The police had other serious calls, including a domestic dispute and a fatal motor vehicle collision. The starting point in this trial is the presumption of innocence. Mr.

Frail is presumed to be innocent and is not required to prove ordisprove anything. The onus of proof is on the Crown and never shifts. The standard of proof is high - proof beyond a reasonabledoubt. Any reasonable doubt on any issue must be resolved in favour of Mr. Frail. I will deal first with the voice identification evidence. As the Ontario Court of Appeal emphasized in R. v. Dodd, 2015 ONCA 286 atparagraphs 79 and 81: o Voice identification evidence is even more fraught with dangers than eyewitness identification evidence.

It ought to be treated withextreme caution. o The ability of a lay listener to correctly identify voices is subject to a number of variables, including the quality of the recording, thegap in time between hearing the known voice and attempting to recognize the disputed voice, the nature and duration of the voice whichis sought to be identified and the familiarity of the listener with the known voice. In R. v. Pinch, 2011 ONSC 5484 Hill J. provided a helpful

summary of guiding principles for assessing non-expert evidence asto voice recognition at paragraphs 67 to 80, including the following: o A police witness exposed to the subject’s speech during the investigation or after arrest may provide non-expert recognition evidenceon the basis of acquired familiarity with a speaker’s voice. o Expert evidence shows that lay listeners with considerable familiarity of a voice and listening to a clear recording, can still makemistakes. o Where the evidence discloses no foundation for a witness’s purported voice identification, the evidence has no probative value.

o Any number of factors will affect the reliability of voice identification and in turn relate to misidentification, false positives and factual miscarriages. o Factors that impinge upon the reliability of voice recognition or voice identification or both, include the pre-trial procedure used for voice identification and whether suggestiveness can be eliminated. Did the purported identification take place only after acquiring knowledge of a circumstantial confirmatory event?

It is all too easy for an investigating officer wittingly or unwittingly to be affected by knowledge already obtained in the course of the investigation. o Witness confidence in voice identification does not substantially correlate to accuracy of identification. The two officers who identified the 911 caller’s voice as that of Mr. Frail did so in the context of listening to the audio recording after arrest and with the knowledge that Mr. Coddington had identified Mr. Frail as the man who said he was going to call in a bomb threat. They did not have any other suspects.

As noted, it is all too easy for an officer wittingly or unwittingly to be affected by knowledge already obtained in the course of the investigation. The audio recording was only 14 seconds in length. Other than Sergeant Otten’s generic observation that the voice on the recording was not a low, deep voice, there was no specific foundation for the purported voice identification. There was no definable speech characteristic or pattern. Accordingly, I place no weight on the voice identification evidence. I now turn to the assessment of the remaining trial evidence.

As emphasized by the Supreme Court of Canada in R. v. Villaroman , 2016 SCC at paragraph 55: ...Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence [ cases and citations omitted]. I accept as credible, reliable and accurate the un-contradicted testimony of Mr. Coddington that Mr. Frail clearly stated to him that he was going to call in a bomb threat. Mr. Frail was agitated and upset because Mr.

Coddington refused to permit him to re-enter the bar. It was on Mr. Frail’s third attempt to re-enter the bar that he threatened to harm the business by calling in a bomb threat. Mr. Frail then walked away and out of sight. A very short time later, at 11:19 p.m., a bomb threat was called in to the 911 operator from a payphone, which was several blocks away from Gilly’s and well within walking distance. The male caller said, “There’s a bomb going to go off at Gilly’s Sports Bar in about 20 minutes.” The interval between Mr. Frail’s face-to-face statement to Mr.

Coddington that he was going to harm the business by calling in a bomb threat and the time the Stratford Fire Department arrived on scene was approximately 10 to 15 minutes. Mr. Frail and his girlfriend were across the street when the officers were evacuating people from Gilly’s, Pizza Pizza and the tenants in the apartments above those premises.

Given Mr. Frail’s agitation and upset over being denied re-entry, his persistent attempts to re-enter the bar, his expressed intention to harm the business, his specific statement that he was going to call in a bomb threat, the location from which the 911 call was placed, and the timing of the 911 call in relation to Mr. Frail’s face-to-face interaction with Mr. Coddington, the only reasonable inference to be drawn from the totality of the trial evidence is that Mr. Frail was the male caller who made the bomb threat to the 911 operator.

In reaching that conclusion, I am mindful of the direction given by the Supreme Court of Canada in Villaroman at paragraph 56. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. In the present case, there are no such plausible theories or reasonable possibilities. There are no reasonable inferences other than guilt.

The Crown has discharged its onus of proving beyond a reasonable doubt that the guilt of the accused is the only reasonable inference that can be drawn from the totality of the trial evidence. Accordingly, Mr. Frail, I find you guilty of the four charges before the court.