Dunstan found not guilty in 2016
Adanac Hotel Shooting
#LSN_Crime Thunder Bay Countcouthouse Inside Edition
THUNDER BAY, ONTARIO - February 15, 2019 (LSN) Jonathon David Dunstan found not guilty in 2016 Adanac Hotel Shooting. Dunstan spent 30 months in jail for a crime he did not commit A 3 day trial started this past Monday February 11, 2019 in Superior Courtroom
Courtroom 206 is commonly referred to as the M.A.H.S. Courtroom.
Multi Accused High Security Courtroom.
It is one of the largest Courtrooms at the Thunder Bay courthouse and has a capacity to seat numerous members of the public and media.
But, no members of the public showed up and no other local media made any effort to attend.
Besides myself, there was very little attention paid to this trial, when there should have been a lot of attention.
IT WAS A SHOOTING IN A PUBLIC ESTABLISHMENT.
The trial ended Wednesday February 13,2019. His Honour Fitzpatrick endeavoured to reach a decision by today.
Appearing today, Friday February 15,2019 for judgement on that trial is 31 year old JONATHON DAVID DUNSTAN.
He’s wearing blue rugby style pants and has a bluish green button shirt that not tucked in. He stands about 5’6” tall and is of average build. He has long, shoulder length dark hair and some scruffy facial hair.
He has 2 family members here to support him today, I believe his sister and mother.
DUNSTAN is being represented by Toronto lawyer Christopher Avery. Crown Attorney Tiffany Boisvert has been prosecuting the case.
WRITERS NOTE: Having watched a good portion of this trial and being here for the Judgement, I’m already prepared for what to expect, which is a Not Guilty verdict. Based on the witness testimony heard and the excellent cross examination done by defence counsel Christopher Avery, I’m firmly convinced that JONATHAN DUNSTAN was not the perpetrator of the shooting that occurred around 1am on August 1,2016 at the Adanac Hotel located at 227 Simpson Street. Plenty of reasonable doubt has been raised by Christopher Avery.
With that being said, who is the shooter?
That person is out there somewhere, but it’s not JONATHAN DUNSTAN.
The general public has strong support for the Thunder Bay Police Service. Everyone wants to believe that police catch the bad guys and courts prosecute them. And 99% of the time, that’s what occurs. This time however, the wrong person was arrested, charged and detained for 30 months. Certainly not intentional, but nonetheless a mistake. I’m sure the TBPS will learn from this moving forward. They try hard, but can’t be perfect, especially when dealing with witnesses and victims who are under the influence of alcohol. But I’m left wondering how this case got to this point? Why did the Crown pursue this, knowing the evidence?
I struggled today figuring out how to put the story to the public. I ultimately decided it would just be best to copy and paste the Judge’s decision below. His Honour Fitzpatrick summed up the entire matter rather well in his written decision, as he usually does.
Reasons for Judgment
HEARD: February 11, 12 and 13, 2019, at Thunder Bay, Ontario
[1] Jonathon David Dunstan is charged with four separate offences contrary to the Criminal Code, R.S.C., 1985, c. C-46, namely aggravated assault contrary to s. 268; possession of a firearm without being the holder of a license contrary to s. 91(1); the discharge of a firearm with intent to endanger life contrary to s. 244(2)(a); and breach of recognizance contrary to s. 145(3).
[2] These four offences relate to an incident that occurred at the Adanac Hotel in Thunder Bay at around one in the morning on August 1, 2016. At that time, a patron of the bar, John Depaola, was shot twice in the right arm with a .22 caliber handgun. The gunman fled the bar.
Mr. Depaola testified that the gunman was Mr. Dunstan. He identified Mr. Dunstan in court as the one who shot him. Mr. Depaola’s ex-girlfriend, Ms. deRuiter, was present at the time of the shooting. She testified that the gunman was Mr. Dunstan. Mr. Dunstan chose to not call any evidence. Counsel for Mr. Dunstan argues that the evidence of the Crown witnesses is completely unreliable on the issue of identity.
[3] The Crown and the defence have agreed to all the facts relating to the essential elements regarding three of the four offences at issue, save one critical fact. The defence argues that the Crown has not proven the identity of the man who shot Mr. Depaola, the act from which the first three of the four charges arise. The fourth charge is a breach of probation allegation requiring the Crown to prove Mr. Dunstan was at the Adanac Hotel on August 1, 2016. Both Crown and defence counsel agree that determination of this trial turns on the identification evidence of the Crown witnesses.
Evidence of Mr. Depaola
[4] Mr. Depaola was celebrating his 55th birthday at the Adanac Hotel (the “Addy”) on August 1, 2016. Mr. Depaola was a regular at that establishment. He went to the Addy on July 31, 2016, at around 11:00 p.m. to be with a number of friends, to drink beer, and to shoot pool.
[5] Mr. Depaola had consumed one or two beers before going to the Addy that night. Once he arrived at the Addy he continued to consume moderately. By 1:00 a.m. on August 1, 2016, Mr. Depaola described himself to be at “3 or 4” on a scale of 1 to 10 of drunkenness, 1 being sober and 10 being blacked out.
6] At around 1:00 a.m., Mr. Depaola saw a man, who he claim he recognized, enter the bar from its main entrance and walk towards the rear of the bar. At the time, there were no other patrons in the rear of the bar. Mr. Depaola said he approached the man to talk. Instead, the man drew a small handgun and shot him twice in the arm.
[7] There was no issue in this trial that indeed Mr. Depaola was shot on August 1, 2016. The parties agreed that he suffered injuries sufficient to constitute a wound for the purposes of s. 286 of the Criminal Code. The parties agreed that Mr. Depaola was shot with a .22 caliber pistol. It certainly was a bad start to a birthday.
[8] During Mr. Depaola’s testimony, he identified Mr. Dunstan as the man who shot him on August 1, 2016. Mr. Depaola did an “in dock” identification, pointing out Mr. Dunstan as the man who shot him. Mr. Depaola admitted that, at the time he was shot, he did not know Mr. Dunstan’s name. He was never given the opportunity to identify Mr. Dunstan from a police lineup or from reviewing police photographs of various persons. Mr. Depaola admitted he learned of Mr. Dunstan’s name as the result of a police press release announcing that Mr. Dunstan had been sought for the shooting. There was no evidence led at the trial indicating how it was the police decided to seek Mr. Dunstan and publish his photograph. However, Mr. Depaola testified that he was able to make a positive identification of Mr. Dunstan after he was arrested because of three prior significant interactions he had with Mr. Dunstan.
[9] Two of the incidents occurred at Newfie’s bar. Newfie’s is a well-known establishment in Thunder Bay’s south ward. It is located about half a kilometer from the Addy and coincidentally right across the street from the Thunder Bay Courthouse. The first incident occurred sometime in May or June 2016.
[10] Mr. Depaola testified that, while he was shooting pool at Newfie’s, Mr. Dunstan, for no apparent reason, came up from behind and somehow sucker punched Mr. Depaola in the nose. The punch drew blood. Mr. Depaola saw stars. Nevertheless, Mr. Depaola was able to reach back and grab his assailant and throw him over his shoulder. The assailant landed under a pool table and then ran away. Mr. Depaola testified that he recognized the person who was sitting in court as both the accused in this matter and the man who had sucker punched him at Newfie’s.
[11] The next incident also occurred in the environs of Newfie’s bar on July 7, 2016. Mr. Depaola was able to specifically identify this date because his former girlfriend, Tracey deRuiter, took photos of him on that date. Mr. Depaola testified that he was “lured out” of Newfie’s and into an alley behind the bar by Mr. Dunstan and two other men. At that point, Mr. Depaola was jumped by Mr. Dunstan and knocked unconscious. However, before losing consciousness, Mr. Depaola said he looked up to see Mr. Dunstan’s face as he felt a hand rummaging through his pants pockets.
[12] The photos dated July 7, 2016, admitted on consent, show Mr. Depaola with significant personal injuries. Despite being wounded badly, Mr. Depaola did not report this incident to the police until after he was shot on August 1, 2016.
[13] The third incident occurred sometime between July 7 and August 1, 2016. Mr. Depaola’s evidence about this incident was revealed for the first time at the trial. Mr. Depaola testified that he was at Ms. deRuiter’s place having a barbecue. He saw Mr. Dunstan walk by on the street with another person. He did not do anything about it at the time.
[14] Mr. Depaola gave detailed testimony about the events immediately before and after he was shot.
[15] Mr. Depaola testified that he followed the man who had entered the bar to the rear of the bar. There were two pool tables in that area, but no other patrons were present. Mr. Depaola’s testimony about whether or not words were exchanged was inconsistent. He said that he did not recall saying anything, but also agreed he may have said words to the effect of inquiring why the other patron was there. Also, while he did not recall the other patron saying anything, he agreed that the other person may have said words to the effect, “haven’t I had enough?”
[16] In any event, the interaction did not last long as the other patron reacted to Mr. Depaola’s approach by reaching into his pocket, pulling out a small pistol, and firing twice.
[17] Mr. Depaola remembered the patron was male, Caucasian, with short, light coloured hair, wearing a white muscle tank top-like shirt, a blue baseball cap, and a trench coat.
[18] Mr. Depaola did not recall any facial hair, scars, or tattoos on the man who shot him. Mr. Depaola could not recall the type of pants or shoes the man who shot him was wearing.
[19] Mr. Depaola did not identify Mr. Dunstan by name when he was first interviewed by the police later that morning.
[20] Mr. Depaola was not asked to participate in any photo recognition exercises by the police. Mr. Depaola was not asked to pick out Mr. Dunstan from a police lineup.
Evidence of Rachelle Lamkey
[21] Ms. Lamkey was the bartender working at the Addy on the night of July 31 and the early morning August 1. She has worked as a bartender for many years and has been employed at the Addy for the past six and a half years.
[22] Mr. Depaola is well known to Ms. Lamkey. She knows him as a regular at the Addy. She knows him as a man who occasionally gets in fights. Mr. Dunstan is not known at all to Ms. Lamkey. She could not identify him if he walked passed her.
[23] Ms. Lamkey did witness the shooting from a distance. She made the 911 call immediately after Mr. Depaola was shot. She had served the gunman a Molson Dry. She referred to the gunman as the “Molson Dry guy” throughout the majority of her testimony. Following the Molson Dry guy paying for his beer with coins and Ms. Lamkey putting the coins in the till, she watched as he headed for the then empty rear area of the bar. She saw Mr. Depaola head towards that area as well. Given her experience as a bartender, and observing Mr. Depaola’s demeanor and knowing his reputation for fighting, she knew that trouble was coming. As well, she noticed that Molson Dry guy was carrying a backpack. Backpacks are normally prohibited in the bar, and she wanted to retrieve it and store it behind the bar.
[24] She witnessed Mr. Depaola throw his baseball cap onto one of the two pool tables where Molson Dry guy was sitting. She heard Mr. Depaola say something to the effect, “Do you want to go now?” To her, “go” meant fight. She did not see the gun, but she saw a flash.
[25] She testified that the Molson Dry guy had blue eyes and scruffy facial hair. He was wearing a blue and white checkered dress shirt with a collar. She was very clear; Molson Dry guy was not wearing a trench coat or a white muscle shirt.
[26] She did not retrieve the bottle or can of beer the Molson Dry guy was drinking. She did not see the man leave the bar as she was busy calling 911.
Evidence of Tracey deRuiter
[27] Ms. deRuiter was Mr. Depaola’s former girlfriend. Their relationship ended as the result of Mr. Depaola assaulting her in 2017. Ms. deRuiter was with Mr. Depaola the night he was shot.
[28] Ms. deRuiter testified that she was confident she knew it was Mr. Dunstan who entered Addy’s around 1:00 a.m. on August 1, 2016. She testified that she was confident she knew Mr. Dunstan’s name as of August 1, 2016, at 1:00 a.m., because of the prior incidents between Mr. Depaola and Mr. Dunstan to which Mr. Depaola testified. She said that she was present the first time Mr. Depaola said he was sucker punched by Mr. Dunstan at Newfie’s. She was not present when Mr. Depaola was jumped in the alley behind Newfie’s.
[29] She also testified that she was with Mr. Depaola when he saw Mr. Dunstan walk by the barbecue they were having sometime in July 2016. Like Mr. Depaola, the first time Ms. deRuiter told anyone about this incident was the date she testified.
[30] Ms. deRuiter did not tell the police Mr. Dunstan’s name when she was interviewed by them in the early morning of August 1, 2016. She claimed she knew his name and went to confirm his name with her brother, who happened to be in police custody the morning of August 1, 2016.
[31] The interaction between Ms. deRuiter and her brother was videotaped by the police. The entire video tape was shown to Ms. deRuiter during her cross-examination.
[32] Ms. deRuiter testified that she witnessed Mr. Dunstan shoot Mr. Depaola near the physical bar, where drinks are served, that is located at the front of the Addy. This is a very different area than that identified by both Mr. Depaola and Ms. Lamkey. Photos of blood on the floor around a pool table in the area at the rear of the bar where introduced on consent.
[33] In cross-examination, Ms. deRuiter testified that she was as confident in her identification of Mr. Dunstan by name as she was as to where she said the shooting took place in the bar.
[34] Ms. deRuiter admitted she is an alcoholic. She said that she had ten beers before she attended at the Addy. She was also under the influence of morphine, which has been prescribed to her as the result of a horrific attack she endured many years ago. She said she was “8” drunk on the aforementioned 1 to 10 drunkenness scale at the time Mr. Depaola was shot.
[35] Ms. deRuiter did not notice Mr. Dunstan wearing a trench coat. On the night of the incident, she told police that he was wearing a red and white checkered shirt.
Evidence of Lorne Krause
[36] Mr. Krause is a friend of Mr. Depaola. He was with Mr. Depaola, Ms. deRuiter, and another person named Rowena at the Addy at around 1:00 a.m. August 1, 2016. The group was drinking beer and playing pool at the front portion of the bar.
[37] Mr. Krause did not see the person who shot Mr. Depaola enter the bar. He did, however, see Mr. Depaola get up and head toward the rear of the bar, an area that was obscured to his vision by a wall. Mr. Krause did not offer any evidence that would identify Mr. Dunstan as being at the Addy on August 1, 2016.
Evidence of Constable Justin Backer
[38] Constable Backer was the first Thunder Bay police officer on scene at the Addy after the 911 call was made by Ms. Lamkey. He was dispatched at 1:04 a.m. and arrived at 1:07 a.m. He saw a wounded Mr. Depaola. He saw the blood on the floor near the pool table at the rear of the bar.
[39] Constable Backer did not offer any evidence that would identify Mr. Dunstan as being at the Addy on August 1, 2016.
Position of the Parties
[40] The Crown was fair and direct in acknowledging some weaknesses in the identification evidence of its witnesses. The Crown argued that the identification evidence of Mr. Depaola was sufficient to convince me beyond a reasonable doubt that it was Mr. Dunstan who shot Mr. Depaola on the night of August 1, 2016. The Crown argues that, on August 1, 2016, Mr. Depaola recognized Mr. Dunstan as the result of the three prior interactions he had with Mr. Dunstan. The Crown acknowledges it did not spend any time in-chief with Mr. Depaola about descriptors of Mr. Dunstan because their ultimate interaction at the Addy was a very high stress situation where personal descriptors would be overborne by the realities of the interaction. The Crown relied on the in dock identification of Mr. Dunstan by Mr. Depaola.
[41] The defence argues that the Crown’s identification evidence is completely unreliable. It points to the descriptor evidence given by Mr. Depaola about Mr. Dunstan’s hair, blonde or light coloured, when the police photo published on August 2, 2016, showed a male with brown or dark hair. Also, Mr. Depaola described the hair length as short, which is in contrast to Mr. Dunstan’s hair length in the photo published on August 2, 2016. In that photo, Mr. Dunstan’s hair is not short. The defence argues that the inconsistencies in Mr. Depaola’s evidence are sufficient to make it completely unreliable.
The Law
[42] The parties relied on the same line of authorities. The direction from the Supreme Court of Canada in R v. Hibbert 2002 SCC 39, [2002] 2 S.C.R. 445, as to the vigilance fact finders must exercise when confronted with identification evidence is well established. This is particularly the case for “in dock” identification evidence.
[43] In a case where it is contended that the identification evidence relies on recognition from prior engagements or encounters, the Ontario Court of Appeal outlined the relevant approach in R v. Campbell, 2017 ONCA 65, 136 W.C.B. (2d) 416, at para. 10, where it noted that there is a critical difference between recognition evidence from an individual who knows the person being identified from prior interactions and that given by witnesses who are identifying persons who were strangers to them when the interaction leading to the identification evidence took place. Nevertheless, at para. 10, Campbell also notes that recognition evidence is merely a form of identification evidence, and as such, the same concerns apply and the same caution must be taken when considering its reliability as in dealing with any other identification evidence.
Disposition
[44] In my view, the evidence of the Crown has not proved beyond a reasonable doubt that Mr. Dunstan was the man who shot Mr. Depaola on August 1, 2016. I say this because I was not convinced at all by the evidence of the Crown witnesses as to Mr. Dunstan’s identity.
[45] Only Mr. Depaola and Ms. deRuiter identified Mr. Dunstan as the shooter. I am not confident in the identification evidence of either witness for a number of reasons.
[46] Ms. deRuiter’s evidence was inconsistent with the evidence of Ms. Lamkey, Mr. Depaola, and Mr. Krause as to where the shooting occurred. This in my view is an important fact that would tend to stand out if, in fact, Ms. deRuiter’s powers of observation were reliable.
[47] I find her answer on cross-examination, that she was as confident of knowing Mr. Dunstan’s name at the time of the shooting as she was of where the shooting took place, to be useful in assessing her credibility and reliability. I find the shooting took place at the rear area of the establishment, not beside the bar as she testified. I find this because of the photographic evidence of blood, the spent .22 shell found on the floor, and the evidence of Ms. Lamkey. Therefore, I reject Ms. deRuiter’s evidence about where the shooting took place.
[48] This lessens my confidence in her assertion that it was Mr. Dunstan at the Addy on the night of the shooting. Also, she was significantly impaired that evening. I find her assertions that she knew Mr. Dunstan’s name, but somehow required confirmation of it from her brother, to be incapable of belief. I say that as the result of watching the video of her interaction with her brother at the police station that night. Watching the entirety of the interaction, it is clear that she did not know Mr. Dunstan’s name at that time. She is clearly shown on the video trying to get her brother to tell her a name. Yet, at trial, she asserted that she knew his name then as confidently as she asserted she knew it was Mr. Dunstan who shot Mr. Depaola on the night of August 1, 2016. In my view, if in fact Ms. deRuiter knew it was Mr. Dunstan, common sense tells me she would not have to ask her brother, who was clearly impaired at the time and not in any position to deliver “street justice” as she claimed in her testimony she was concerned would occur.
[49] I also find her testimony as to the barbecue to be suspect as it only came to light during the trial. I find it was concocted in concert with Mr. Depaola to buttress their other identification evidence.
[50] I therefore reject her evidence that she saw Mr. Dunstan enter the Addy on August 1, 2016.
[51] I also do not accept Mr. Depaola’s identification evidence as being capable of constituting recognition type evidence. I say this for two reasons.
[52] First, I agree with the defence’s submissions that Mr. Depaola did not give his testimony in a manner that could be said to be straightforward and direct. I found his evidence to be evasive on critical issues, such as why he was approaching the gunman in the bar. He says to talk, although the rest of his testimony and that of others would lead to the conclusion that he was going to fight. Also, he did not know his attacker was Mr. Dunstan. He only made this connection once the police published Mr. Dunstan’s photograph on August 2, 2016, as a person of interest in the “attempted murder of a 55 year old Thunder Bay man” (email Exhibit 4).
[53] I agree with the defence’s submission that the manner in which Mr. Dunstan’s photograph was released to the public irreconcilably tainted Mr. Depaola’s identification evidence. I had no evidence from the Crown whatsoever on why police decided Mr. Dunstan should be sought in connection with the incident involving Mr. Depaola. Nevertheless, Mr. Dunstan’s name and photo were published and noted that he was wanted in connection with the incident at the Addy. This lack of evidence in and of itself puts me in a position of doubt about how it was that Mr. Dunstan came to be charged with the offences before this court.
[54] Second, I do not accept Mr. Depaola’s recognition evidence because of my assessment of his evidence concerning the alleged three interactions he had with Mr. Dunstan prior to the night of August 1, 2016.
[55] With respect to the first incident at Newfie’s, highlighted by a sucker punch from behind and an over the shoulder judo throw of the assailant, I do not accept that Mr. Depaola got any kind of a good look at the assailant given Mr. Depaola’s description of the events. The fact that he saw stars and that the alleged assailant rolled under a pool table and then ran away are significant.
[56] Next, his description of the second incident, in the back alley of Newfie’s, gives me no confidence in his ability to identify Mr. Dunstan as one of the three men who jumped him. There is no question that Mr. Depaola endured severe injuries on that occasion. He received a concussion. He was choked and went unconscious. I simply do not believe that, in that situation, he would be able to physically identify somebody going through his pockets as he was lying on the ground after having “the boots put to him.”
[57] I completely discount the evidence about the barbecue. I do so because it came late to the litigation. If indeed Mr. Dunstan was obsessed with obtaining revenge on his assailant, as Ms. deRuiter testified, his complete inaction on that occasion, given his propensity to fight, cannot be reconciled with his evidence about his immediate reaction to Mr. Dunstan entering the bar on August 1, 2016. Despite the fact that Mr. Depaola and Ms. deRuiter are no longer romantically involved, I find the story about the barbecue simply does not ring true.
[58] In addition, I am left in doubt by the lack of descriptors and the inconsistent descriptors Mr. Depaola gave about the person who shot him. The trench coat is a significant inconsistency in my view. A person would stand out wearing one on an August night, even in Thunder Bay. We do have a summer just for a bit in August. Only Mr. Depaola mentioned the trenchcoat. It makes no sense that anyone would be wearing one at that time of year.
[59] I also agree with the defence’s submissions that the descriptors Mr. Depaola did give of Mr. Dunstan, having short blonde hair and wearing a white muscle shirt, did not match the descriptors from the other witnesses, principally Ms. Lamkey, who was independent of the parties and sober that evening.
[60] I find that Mr. Depaola’s belief about the identity of his assailant, however strongly held, was not based on his actual observations. I was not convinced that the “in dock” identification was reliable in light of the principles set out in R v. Hibbert. While Mr. Depaola did confidently testify that it was Mr. Dunstan who shot him, I find his identification evidence lacking in reliability and credibility. It certainly was a terrible thing that happened to Mr. Depaola that night. The court is obviously concerned about this kind of lawless activity in a public establishment. However, on the basis of all the evidence at this trial, I am left in reasonable doubt as to the identity of the person who shot Mr. Depaola at the Addy on August 1, 2016. I find the Crown has not proved beyond a reasonable doubt that it was Mr. Dunstan who committed the four offences alleged in the indictment before me.
[61] Accordingly, I find Jonathon David Dunstan not guilty of the four offences before the court.
The Hon. Mr. Justice F.B. Fitzpatrick
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DUNSTAN smiles as he learns this decision. He’s been sitting in jail for 30 months awaiting this moment. Inside Edition learned he spent over a year in a segregation cell at the Thunder Bay Jail. He heads to the public gallery, looking relieved to be with his family.
The Inside Edition had a chance to ask JONATHON DUNSTAN what he would do, now that he’s free for the first time in 2 1/2 years?
“I just want to spend time with my family” he replies with a smile. I wish him well with his freedom.
I congratulate his lawyer Christopher Avery on his excellent defence of DUNSTAN in obtaining this decision.
I expect there may be legal action taken to try compensate DUNSTAN for having spent 30 months in jail unnecessarily.