Court File and Parties

COURT FILE NO.: 13-2015 DATE: 20160530 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – MATTHEW CONNORS Appellant

Counsel: R. Fetterly, for the Respondent K. Wells, for the Appellant

HEARD: April 29, 2016

REASONS FOR JUDGMENT Woollcombe J.

Introduction

[1] The appellant, Matthew Connors, was charged with one count of dangerous driving. The Crown alleged that in the early hours of November 23, 2013, while Kenneth Harris lay on the road after a physical fight with Mr. Connors, Mr. Connors intentionally drove his car at him. Following three days of evidence, the issue for the trial judge was whether, when Mr. Connors drove his car along Perry Road that night, Mr. Harris was still lying in the road, or whether he was, as the defence asserted, off the road and therefore out of risk of danger.

[2] The trial judge heard evidence from a number of eyewitnesses about the fight between the appellant and the complainant and about the appellant’s departure from the scene. These witnesses included the complainant, his partner Suzanne Tremblay, the appellant’s girlfriend Kayla Cochrane, and neighbours 13 year old Madyson Turner and her grandmother Gwen Hennessey. The appellant did not testify.

[3] After reviewing the factual backdrop to the allegations and the evidence of the witnesses, the trial judge noted that four of these five witnesses, including Mr. Harris, Ms. Tremblay, Madyson Turner and Ms. Hennessey, gave similar evidence about the appellant driving at Mr. Harris. While Ms. Cochrane testified that Mr. Harris was away from the road and out of danger as Mr. Connors drove away, the trial judge rejected this portion of her evidence and did not have a reasonable doubt as a result of it. On the basis of the evidence that he did accept, he found Mr. Connors guilty.

[4] The appellant advances two grounds of appeal:

a. That the trial judge erred in his assessment of the evidence of Kayla Cochrane, particularly by unfairly assessing her evidence as compared with the manner in which he assessed the evidence of the other witnesses.

b. That the verdict was unreasonable.

[5] For the reasons that follow, the appeal is dismissed.

Analysis

a) Relevant factual background

[6] In order to understand the arguments advanced on the appeal, a brief summary of the relevant factual background is necessary.

[7] The offence was alleged to have occurred early in the morning of November 23, 2013 outside the home of the complainant Kenneth Harris and his partner Suzanne Tremblay on Perry Road in Orangeville.

[8] Earlier that evening, Mr. Connors had been out at a bar with his girlfriend Kayla Cochrane. They had met up with Fawn Turner and a friend of hers. It appears to be common ground that in October 2013, during a break in the long term relationship between Ms. Tremblay and Mr. Harris, Mr. Harris and Ms. Cochrane were involved in a short term relationship.

[9] As of November 22, 2013, Ms. Tremblay had never before met Ms. Cochrane. But, Ms. Tremblay was curious to see her and after learning that Ms. Cochrane was to be at the bar, she decided to go there to the bar to confront her.

[10] As Ms. Cochrane and Mr. Connors were leaving the bar, they saw Ms. Tremblay enter with a friend. This was at about 12:30 a.m. Ms. Tremblay approached them. Ms. Cochrane said that Ms. Tremblay introduced herself to Mr. Connors and asked him, “when are you gonna get this bitch out of here?” Mr. Connors told Ms. Tremblay that she did not need to worry about Ms. Cochrane. Ms. Tremblay acknowledged having called Ms. Cochrane a “bitch”. Mr. Connors and Ms. Cochrane then left the bar with Ms. Turner, whom they planned to drive home.

[11] Ms. Cochrane testified that before they left the parking lot of the bar, Mr. Connors and Mr. Harris exchanged text messages. She said that Mr. Connors and Mr. Harris spoke on the phone while they were in the car. She could hear Mr. Harris yelling into the phone but said that Mr. Connors was calm.

[12] According to Mr. Harris, that evening he received a text message from Mr. Connors that “I gonna, your wife was gonna get punched in her throat”. Mr. Harris knew that Ms. Tremblay was having a drink with a friend and said that Mr. Connors’ text shocked him. He responded to it with something to the effect, “why don’t you come punch someone who can handle it”. Mr. Connors responded that he was on his way over. Mr. Harris did not expect Mr. Connors to come over as he did not think that Mr. Connors knew where he lived.

[13] Ms. Cochrane understood that Mr. Harris made it very clear to Mr. Connors that he wanted Mr Connors and her to come over. She could hear Mr. Harris yelling over the phone. When Mr. Connors asked her for directions to Mr. Harris’ home, she gave them. Asked what she thought the purpose of going to Mr. Harris’ home was, Ms. Cochrane said that she did not know. Asked what she expected was going to happen when she and her current boyfriend showed up at her ex-boyfriend’s home, she said that she did not know. Mr. Connors asked her whether she thought Mr. Harris would be aggressive and she said “no”.

[14] There were ongoing telephone communications between Mr. Connors and Mr. Harris while Mr. Connors was driving. Initially, when Mr. Connors and Ms. Cochrane got to Mr. Harris’s home, no one was outside and Mr. Harris did not respond to Mr. Connors’ phone call. Mr. Connors and Ms. Cochrane started to leave but saw Ms. Tremblay coming home. Mr. Harris texted Mr. Connors that he was coming outside. Mr. Connors and Ms. Cochrane returned to where Mr Harris lived and parked across the street.

[15] There was a great deal of evidence about what happened in the fight that ensued between Mr. Harris and Mr. Connors. That evidence made clear that Mr. Connors fared better in the fight. The fight ended with Mr. Harris lying near the centre of the road bleeding, and Mr. Connors returning to his car. Mr. Connors and Ms. Cochrane then drove away.

[16] The issue for the judge was whether Mr. Connors drove away in a dangerous manner towards Mr. Harris, who was still lying on the road.

b) Did the trial judge err in his assessment of the evidence of Kayla Cochrane?

[17] Mr. Connors argues that the trial judge unfairly assessed Ms. Cochrane’s evidence by relying on inappropriate factors to reject her evidence, and subjecting her testimony to a higher standard of scrutiny than that to which he subjected the other Crown witnesses.

[18] In order to assess these arguments, Ms. Cochrane’s evidence about what happened when they drove away must be evaluated in the context of the rest of the evidence.

[19] The Crown called five witnesses who testified about Mr. Connors leaving the scene. Ms. Cochrane was one of those witnesses. In relation to this specific issue, the evidence included the following:

a. Mr. Harris testified that he recalled waking up in the middle of the road and opened his eyes and turned his head. He described Mr. Connors’ car as heading towards him and said that he leapt out of the way.

b. Ms. Tremblay testified that while Mr. Harris was unconscious on the road, Mr. Connors went to his car, started it, and that Mr. Connors “tried to run him down with the car”. She was sure that if he had not moved, Mr. Harris would have been hit by Mr. Connors’ car.

c. Madyson Turner testified that she saw Mr. Harris lying on the street and that he jumped onto the grass when the other person’s car started driving towards him. If he had not moved, she thought Mr. Harris would have been hit by the car.

d. Ms. Hennessey testified that she thought Mr. Harris was unconscious on the road. She and Ms. Tremblay were yelling at him to get off the road and the appellant drove his car “really fast”. Mr. Harris dove to avoid being hit. She thought he would have been hit had he not moved out of the way.

[20] Starkly at odds with these four witnesses was the testimony of Ms. Cochrane. She testified that after the fight, Mr. Connors returned to the car, turned it on, and before it started to move, Mr. Harris headed back towards the sidewalk near his house. She said there was never any danger of the car striking Mr. Harris.

[21] Given the two very different versions of what had happened, it was critical for the trial judge to grapple with the evidence of Ms. Cochrane. In my view, he did so in a manner that was fair.

[22] The trial judge recognized that Ms. Cochrane, who was in the front seat of Mr. Connors’ car during and after the fight, had a good vantage point from which to make observations. He also recognized that if he believed her evidence or found that it raised a reasonable doubt, he would have to acquit the appellant. However, for reasons that he gave, he rejected Ms. Cochrane’s evidence on the critical issue of whether Mr. Harris had moved out of the way when Mr. Connors drove towards him.

[23] In my view, the trial judge’s reasons for not accepting Ms. Cochrane’s evidence were reasonable.

[24] First, the trial judge noted that Ms. Cochrane had chosen not to cooperate with the police by providing a statement. It was open to the trial judge to find that her failure to provide a statement until four months after the event, when her memory of what had happened would not have been as good as immediately afterwards, was relevant to assessing the reliability of her evidence and her ability to recall the events. It is clear from the transcript that Ms. Cochrane reviewed her four page statement before testifying. Despite the fact that Ms. Cochrane was not cross-examined on the extent to which she had refreshed her memory from her statement, in my view, the trial judge was entitled to conclude that refreshing her memory from a document prepared so long after the events, adversely affected her reliability.

[25] Second, the trial judge concluded that Ms. Cochrane’s choice not to provide a timely police statement negatively affected her credibility. In my view, the trial judge was entitled to make an adverse credibility finding against Ms. Cochrane on the basis of her unwillingness to cooperate with the police investigation. She was never a suspect in this case. She was a witness who had an excellent opportunity to observe what happened. Yet, she believed that she needed to obtain legal advice before she was prepared to provide a statement. There was nothing improper about the trial judge concluding from her unwillingness to provide a timely police statement that her credibility was adversely affected: R. v. A.D. [2004] O.J. No. 5979 (S.C.J.).

[26] Third, the trial judge found that Ms. Cochrane had an obvious bias. This finding was available to him on the record before him. Ms. Cochrane can fairly be characterized to have been at the centre of the dispute between Mr. Connors and Mr. Harris. Mr. Harris’ partner Ms. Tremblay lashed out at Ms. Cochrane because she viewed Ms. Cochrane as Mr. Harris’ mistress. Ms. Cochrane’s boyfriend Mr. Connors was angry at Ms. Tremblay and threatened her to Mr. Harris. Mr. Harris responded by insisting that Mr. Connors and Ms. Cochrane come to his home. Ms. Cochrane knew all of this.

[27] I see no error in the trial judge’s view that Ms. Cochrane could not have been unaware what was going on as she sat in the car and listened to the telephone discussion between Mr. Harris and Mr. Connors. She had to know that they were planning to fight. Yet, when she testified, Ms. Cochrane purported not to know why they were going to Mr. Harris’ home, and not to know what to expect. I think that the trial judge’s conclusions that Ms. Cochrane was “less than candid” and “certainly not indifferent towards Ms. Tremblay and Mr. Harris” were reasonable and that the finding that she had “an obvious bias” was available on the evidence, particularly in light of her unreasonable and incredible denial of any awareness as to what was going to happen when they arrived at Mr. Harris’ home.

[28] The appellant asserts that there was no basis for the trial judge’s conclusion that Ms. Cochrane’s decision to provide Mr. Harris’s address to Mr. Connors was effectively “egging him on”. While I might not have characterized Ms. Cochrane’s decision to provide Mr. Harris’ address to Mr Connors in quite these terms, I am not persuaded that the trial judge erred in doing so. I say that because Ms. Cochrane’s decision was, practically, what enabled Mr. Connors to find Mr. Harris. Mr. Harris did not give his address to Mr. Connors and knew that Mr. Connors did not have it. Despite having called Mr. Connors over, Mr. Harris knew that no fight could happen unless Ms. Cochrane chose to share it. Viewed in this light, in my view it was within the trial judge’s discretion to characterize Ms. Cochrane’s conduct as encouraging Mr. Connors, or “egging him on”.

[29] Further, I think that when the trial judge had four consistent, inculpatory versions of Mr. Connors’ departure from the scene, and only Ms. Cochrane’s exculpatory version, and had a proper basis upon which to reject Ms. Cochrane’s evidence, his credibility findings make sense. They are, of course, entitled to deference, absent palpable and over-riding error, which I do not find.

[30] A further concern raised by the appellant is that the trial judge made adverse findings against Ms. Cochrane in circumstances in which many of the same findings could and should be made against the other witnesses. For instance, the appellant argues that Mr. Harris and Ms. Tremblay were as “interested” and as “biased” as Ms. Cochrane. Further, it is argued that there were issues about which the other witnesses were inconsistent, and that these inconsistencies should have resulted in adverse credibility findings against them, which were not made.

[31] I do not see this as a case in which the trial judge applied different standards of scrutiny to different witnesses. While the appellant is correct that the trial judge did not expressly state that other witnesses, like Mr. Harris, were not completely objective, it is clear from his reasons that the trial judge viewed Mr. Harris as being as responsible for the fight as Mr. Connors. Indeed, when commenting on the backdrop to the fight, he stated:

Mr. Connors angered Mr. Harris with a text to which Mr. Harris responded with what amounts to an invitation to fight…both men had every intention of having a fight when they met that night. They are both responsible for these immature decisions…

[32] It cannot be said that the trial judge was unaware of the obvious and direct interest and potential for bias that both Mr. Harris and Ms. Tremblay had in the case. But, he found their evidence as to what happened was largely supported by both Madyson Turner and Gwen Hennessey. In other words, when he had to decide what happened after the fight, and to reconcile the fact that Ms. Cochrane gave such different evidence from the other four, her interest in the proceedings became more significant to him that any bias or interest that might have affected the credibility of Mr. Harris and Ms. Tremblay’s evidence.

[33] I accept the submission of Mr. Connors that there were areas in which the other Crown witnesses were internally inconsistent, inconsistent with each other, and, in the case of Ms. Hennessey, clearly mistaken. The trial judge did not review each of these areas, though he did review some of the major ones. For instance, when dealing with the major inconsistency between Ms. Hennessay and all of the other witnesses as to where Mr. Connors’ car was parked (she alone thought it was on the same side of the street as she and Mr. Harris lived), the trial judge acknowledged her mistake and concluded that she was confused.

[34] The trial judge also found that the credibility of other Crown witnesses was not diminished during their testimony, including under cross-examination. He held, as was entitled to, that they were candid and responsive. He found that the inconsistencies that were pointed out to him were in relation to minor issues, and not significant in the context of the case. A trial judge is not required to review and reconcile every aspect of every witness’s evidence and to reconcile all of the challenges that are made to the evidence. In my view, the trial judge’s conclusions were reasonable and are entitled to deference.

[35] In summary, I do not accept the appellant’s argument that the trial judge unfairly or improperly assessed Ms. Cochrane’s evidence. When he dealt with the critical issue, he found her evidence anomalous, and explained why he did not believe it or have a reasonable doubt arising from it. This ground of appeal must be dismissed.

c) Is the verdict unreasonable?

[36] When an allegation is made that a verdict is unreasonable, it is well established that the reviewing court must ask whether the verdict is one that a trial judge, who instructed himself or herself properly on the law, and acted judicially, could reasonably have rendered.

[37] In this case, I understand the appellant’s unreasonable verdict argument to be that if the trial judge had not improperly rejected Kayla Cochrane’s evidence, he would not have reached the verdict that he did because there were too many inconsistencies in the evidence of the other witnesses.

[38] As I have indicated, it is my view that it was within the discretion of the trial judge in this case on this record to make the credibility findings that he did about Ms. Cochrane and about the other Crown witnesses.

[39] On the basis of the evidence that he did accept, which included Mr. Harris, Ms. Tremblay, Madyson Turner and Ms. Hennessey, the trial judge could certainly have found that Mr. Connors drove towards Mr. Harris while he lay near the centre of the road. Further, the finding was available that but for Mr. Harris moving quickly from his position on the road to avoid being hit, Mr. Connors’ vehicle would have hit him. This driving by Mr. Connors in these circumstances amounted to a marked departure from the standard of care of a reasonable driver in these circumstances. Further, on this evidence, it was reasonable for the trial judge to conclude that the Crown had proven that Mr. Connors knew that Mr. Harris was on the road and knew that driving towards him as he did was inherently dangerous and created a serious and obvious risk.

[40] This ground of appeal must be dismissed.

Conclusion

[41] The appeal is dismissed.

Woollcombe J. Released: May 30, 2016