R. v. Alton, 2015 ONSC 2166
CITATION: R. v. Alton, 2015 ONSC 2166
COURT FILE NO.: 79/14
DATE: 20150408
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
ANDREW JOHN ALTON Appellant
A. Khoorshed, for the Respondent
R. Cornale and C. Cornale, for the Appellant
HEARD: February 18, 2015
[On appeal from the judgment of Cooper, J. dated February 4, 2014]
MILLER, J.
[1] Andrew Alton was found guilty February 4, 2014 of Criminal Harassment of A.K. between July 1, 2012 and November 6, 2013. He was sentenced to a suspended sentence (in addition to 91 days of pre-sentence custody) and three years’ probation.
[2] Mr. Alton appeals his conviction and sentence. He takes the position that the trial judge improperly relied on reply evidence called by the Crown which should not have been admitted as it was purely collateral. He appeals his sentence on the basis that it was unfit in all of the circumstances.
[3] The Crown takes the position that the Appellant cannot raise an issue on appeal that was not raised at trial. The Crown submits that the reply evidence was not purely collateral but was relevant to the nature of the relationship between Mr. Alton and the complainant. The Crown submits that the findings resulting in the Appellant’s conviction would have been arrived at with or without the reply evidence. The Crown submits that the sentence imposed was fit in all of the circumstances.
[4] Mr. Alton met A.K. in the autumn of 2011 at a church group. A.K. testified that Mr. Alton then attended a dinner party at her residence in the company of another member of the group who had been invited to dinner, Lynn Hunt. A.K. and Mr. Alton were thereafter friendly with one another until July of 2012 when, uncomfortable with Mr. Alton’s romantic interest in her, A.K. advised him she wanted no further communication.
[5] Mr. Alton then began turning up at various locations where A.K. was volunteering or taking classes. In February 2013 he arrived at the door of her residence with a bizarre and disturbing birthday card. Mr. Alton worked in maintenance at some of the same places A.K. worked. She spoke to her employer about Mr. Alton’s behaviour and Mr. Alton was placed on strict conditions by the employer to avoid contact with A.K. Mr. Alton continued to appear in places where A.K. would go. She applied for a peace bond against him and eventually went to police to have him charged.
[6] Mr. Alton in his testimony agreed that the events described by A.K. had occurred but that he did not understand that his contact with A.K. was unwanted as she continued to politely respond to his e-mail communication from time to time. Mr. Alton testified that when he first met A.K. she had invited him to dinner. He maintained this position in the face of cross-examination by the Crown with respect to the statement of Lynn Hunt, which had been taken by police and disclosed long before trial, to the effect that Mr. Alton had approached Ms Hunt to see if he might go to the dinner hosted by A.K. The Crown told Mr. Alton he would call Ms Hunt as a reply witness.
[7] At the close of the case for the defence, the Crown sought to call Lynn Hunt in reply. No objection was made by counsel for Mr. Alton who cross-examined Ms Hunt by suggesting to her that Mr. Alton may have perceived that the invitation to dinner came from A.K. Ms Hunt disagreed, maintaining that it was Mr. Alton pursuing the invitation through her.
[8] The trial judge in his Reasons for Judgment conducted a W.D. analysis. He found that A.K. and Lynn Hunt were credible witnesses and that Mr. Alton was not. He found that Mr. Alton knowingly harassed A.K.
The Reply Evidence
[9] Counsel for Mr. Alton submits that Ms Hunt’s testimony was purely collateral and therefore inadmissible. They rely on the Supreme Court of Canada decisions in R. v. Krause 1986 CanLII 39 (SCC), [1986] S.C.J. No.65 and R. v. Aalders 1993 CanLII 99 (SCC), [1993] S.C.J. No. 67 and the decision in R. v. Melnichuk [1997] S.C.J. No. 36 approving the dissent of Doherty, J.A. at [1995] O.J. No. 3915. These cases establish that:
…The general rule is that the Crown…will not be allowed to split its case. The Crown … must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in … the indictment and any particulars… This rule prevents unfair surprise, prejudice and confusion which could result if the Crown … were allowed to split its case, that is, to put in part of its evidence -- as much as it deemed necessary at the outset -- then to close the case and after the defence is complete to add further evidence to bolster the position originally advanced. The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response.
….the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown's case which could have been brought before the defence was made. It will be permitted only when it is necessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.
In the cross-examination of witnesses essentially the same principles apply. Crown counsel in cross-examining an accused are not limited to subjects which are strictly relevant to the essential issues in a case. Counsel are accorded a wide freedom in cross-examination which enable them to test and question the testimony of the witnesses and their credibility. Where something new emerges in cross-examination, which is new in the sense that the Crown had no chance to deal with it in its case-in-chief (i.e., there was no reason for the Crown to anticipate that the matter would arise), and where the matter is concerned with the merits of the case (i.e. it concerns an issue essential for the determination of the case) then the Crown may be allowed to call evidence in rebuttal. Where, however, the new matter is collateral, that is, not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case, no rebuttal will be allowed…This is known as the rule against rebuttal on collateral issues. Where it applies, Crown counsel may cross-examine the accused on the matters raised, but the Crown is bound by the answers given. This is not to say that the Crown or the trier of fact is bound to accept the answers as true. The answer is binding or final only in the sense that rebuttal evidence may not be called in contradiction. (Krause at paragraphs 15-17)
[10] All of these cases also recognize however, as set out in R. v. R.D. [2014] O.J. No. 1888(Ont. C.A.) at paragraphs 17 and 19:
…it is well-established that the general rule regarding order of proof is not an absolute bar to the introduction of reply evidence by the Crown. Crown rebuttal is permitted when necessary to ensure that each party has had an equal opportunity to hear and respond to the full submissions of the other: Krause, at p. 474. Accordingly, the Crown is permitted to call reply evidence not only when the defence has raised some new matter or defence which the Crown could not have reasonably anticipated and with which it had no opportunity to deal, but also when an aspect of the Crown's case has taken on added significance as a result of the defence case: K.T., at para. 43. Rosenberg J.A. stated the principle succinctly in R. v. Quance (2000), 2000 CanLII 5741 (ON CA), 146 C.C.C. (3d) 153, at para. 21:
[I]t has always been understood that the trial judge has a discretion to admit evidence in reply concerning an issue that was of only marginal importance during the prosecution's case in chief, but that took on added significance as a result of the defence evidence.
Inherent in all the various formulations of the test for reply evidence is the significance of the case actually called by the defence. Whether or not the Crown is entitled to call reply evidence depends in large measure on the evidence adduced and arguments raised by the defence. The Crown's entitlement to lead reply evidence turns in part on whether the defence has raised a new matter or defence, or tendered evidence that caused the Crown's case to be viewed in a new or different light. In other words, only with the benefit of the defence evidence can the admissibility of reply evidence be assessed.
[11] In my view it is within this category the impugned evidence falls. While Ms Hunt’s account of the way in which Mr. Alton managed to attend A.K.’s dinner party had marginal relevance in the Crown’s case, falling as it did, outside of the timeframe of the harassing behaviour, Mr. Alton’s testimony, in which he insisted that A.K. had invited him, took on a new significance in light of his testimony in regards to the harassing behaviour, which he similarly characterised as “at the invitation of” A.K.
[12] It is unfortunate that counsel for Mr. Alton at trial did not object to the reply evidence, as a more fulsome discussion and decision by the trial judge would be available, but in all of the circumstances I find the trial judge did not err in permitting the Crown to call the evidence.
[13] Even if the evidence were collateral, it is apparent it played a minimal role in the assessment by the trial judge of the credibility of Mr. Alton, and in the face of overwhelming evidence of his criminally harassing behaviour, I would find that there was no substantial wrong or miscarriage of justice in admitting it.
[14] The appeal as to conviction is dismissed.
Sentence
[15] The test on an appellate review of sentence is as set out in R. v. Shropshire 1995 CanLII 47 (SCC), [1995] S.C.J. No.52 at paragraph 46:
An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
[16] Mr. Alton had had the benefit of a discharge with respect to a dated and unrelated criminal offence, but the circumstances here were serious, involving persistent behaviour in the face of cautions from A.K., his employer and police to Mr. Alton to desist in his conduct toward A.K. It is clear that Mr. Alton’s actions had a significant disruptive effect on the life and emotional well-being of A.K. I cannot find, in all of the circumstances that a suspended sentence following 91 days of pre-sentence custody was clearly unreasonable even though a discharge would have been to Mr. Alton’s benefit.
[17] The appeal as to sentence is dismissed.
MILLER, J.
Released: April 8, 2015
R. v. Alton, 2015 ONSC 2166
COURT FILE NO.: 79/14
DATE: 20150408
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
HER MAJESTY THE QUEEN
– and –
ANDREW JOHN ALTON
REASONS FOR JUDGMENT
MILLER, J.
Released: April 8, 2015