Her Majesty the Queen v. Kurtis Ellul, 2019 ONSC 3860

COURT FILE NO.: 12/18AP Goderich DATE: 20190628 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – KURTIS ELLUL Appellant

Before: Tranquilli J.

Counsel: Kristen Thomas, for the Crown Cassandra Demelo, for the Defendant

Heard: May 23, 2019 at Goderich

On Appeal from the Judgment of the Honourable Justice T.G. Macdonald on March 19, 2018

Introduction

[1] The defendant appeals his conviction on several offences stemming from two encounters with the complainant in March and April 2016. He was convicted of unlawful confinement, assault and uttering death threats in respect of the April 2016 incident pursuant to ss. 279(2), 266 and 264.1(1)(a) of the Criminal Code. The trial judge stayed the assault conviction in accordance with the Kienapple principle [1]. He was convicted of assault and one count of mischief pursuant to ss. 266 and 430(4) of the Criminal Code as a result of the March 2016 incident. Convictions also followed for breaches of probation.

[2] He was sentenced to nine months in jail plus one-year probation concurrent on each count along with further ancillary orders.

[3] At trial, the Crown called evidence from the complainant, two police officers and the complainant’s friend, who was in contact with the complainant via cell phone texts during the April 2016 incident. The appellant did not testify and called no evidence. The complainant’s credibility was the central issue at trial.

Issues

[4] The issues in this appeal are whether the trial judge made the following errors:

1. Limiting cross-examination of the complainant regarding a prior domestic altercation on the basis of the collateral fact rule or relevance; and
2. His assessment of the complainant’s credibility.

Positions of the Parties

[5] The appellant submits the trial judge incorrectly curtailed his cross-examination of the complainant on a prior domestic conflict on the basis of the collateral fact rule or relevance. This error was compounded by the fact that the court permitted the Crown to question the complainant on the prior incident. The appellant contends this error arose from the trial judge’s misapprehension of the evidence which demonstrated the complainant was an unreliable historian, therefore putting her credibility as to the offences in issue.

[6] The appellant also submits that the trial judge failed to account for significant and material inconsistencies in the complainant’s testimony such that his acceptance of her credibility is insupportable. The appellant submits these errors warrant the substitution of an acquittal or a new trial.

[7] The Crown submits the trial judge correctly limited cross-examination on the basis of relevance did not apply the collateral fact rule. In any event, if the trial judge incorrectly limited cross-examination, such an error is minor in the context of the proceeding as a whole and would not have impacted on the verdict. The trial judge’s credibility findings in respect of the complainant are owed significant deference. The trial judge acknowledged inconsistencies in the complainant’s evidence; however, found that the core of her allegations remained largely intact on a review of the entirety of the evidence.

Factual Background

Crown Case

[8] The Crown’s case was presented mainly through the testimony of the complainant. The complainant was the sole witness in connection with the March 2016 incident. Two police officers and a lay witness testified in addition to the complainant regarding the April 2016 incident.

April 2016 Incident

[9] The complainant and appellant were in a relationship for approximately six months before his arrest. On April 10, 2016, they arranged to go out for dinner to discuss their future. The complainant wanted to end the relationship. The appellant picked the complainant up from a London hotel in his car. The complainant testified that the appellant said they were going for a drive instead of dinner. At one point she tried to get out of the vehicle, but he pulled her back into the car. She asked him to drop her off several times and he did not respond to her requests. It was dark, weather conditions were poor, and she did not know where they were. They drove around for hours.

[10] The complainant received a text from a male friend asking about plans to meet later that evening. The complainant texted her friend that the appellant would not let her out of the vehicle. The friend advised her to try to get out of the car or to call the police. The complainant tried to call 911; however, the appellant grabbed at her cell phone and ended the call. The complainant texted her friend that the appellant threatened to kill them by crashing the vehicle. She sent her friend information about a road sign she saw and a description of the car.

[11] The friend called 911. He texted the complainant that the police could not locate the car and that she needed to call the police. The friend did not have a detailed memory of the events at trial; however, confirmed the texts, that he was worried about the complainant and that he called the police. Copies of the text communications were filed in evidence.

[12] The complainant dialed 911 and put her cell phone under her seat so that the car could be found. Emergency services found the complainant’s cell phone signal in the Exeter area. The Ontario Provincial Police issued a “be on the lookout” for the vehicle. Police located the appellant’s vehicle in Exeter driving southbound behind a snowplough on Highway 4 and arrested him without incident. A police officer testified that the complainant was visibly upset when he first saw her in the vehicle after the arrest.

March 2016 Incident

[13] The complainant testified that she and her son were staying with a friend on Bonaventure Drive in London, Ontario in March 2016. The appellant came to the home and the two argued. The appellant refused to leave. The complainant decided to call her Children’s Aid Society (CAS) worker or the police for help in removing the appellant. Her cell phone did not work, so she ran to a nearby plaza to use a payphone. The appellant followed her to the payphone, grabbed her arm and pushed her in an effort to prevent her from placing the call. He dragged her back to the house after she made the call to her CAS worker. The appellant pulled her sunglasses from her face, ripped the handles off her purse and threw her cell phone over a fence. She testified she did not see what happened to her sunglasses and did not find her cell phone.

Defence Case

[14] The appellant submitted that the extent of the inconsistencies in the complainant’s evidence demonstrated that the complainant was evasive and careless with the truth. The complainant’s accounts of the incidents were improbable, and she completely lacked credibility.

April 2016 Incident

[15] The complainant testified that she believed the appellant knew she was texting but that she thought he did not know who she was texting or what she was typing. In her police statement, she said she kept her cell phone hidden from the appellant, which was also why she did not call the police earlier. In cross-examination she acknowledged that she wanted to keep her cell phone hidden from the appellant, but that it was not, in fact, hidden from him. She later stated that she did not really try to hide that she was texting from the appellant.

[16] The timing of her request for help was questioned as inconsistent with being confined in the appellant’s car against her will. She first asked for help approximately two hours after the drive started when her friend texted her to ask about their plans that evening. The complainant and her friend denied they colluded to fabricate the charges.

[17] The appellant questioned how it was possible for him to grab the complainant with his right hand to prevent her from getting out of the moving car when his car had a manual transmission. The complainant said it was possible to shift first to get into gear and then pull a passenger back into the car.

[18] The complainant claimed the appellant was speeding and driving erratically throughout the encounter, causing the car to fishtail. In cross-examination, she conceded that she did not see the odometer but then stated that she knew the arresting officer said that the appellant was going “pretty fast.” However, the police officer testified that he did not see the car fishtail or swerve. He did not have an impression that the vehicle was speeding.

[19] The complainant testified the appellant stopped at a gas station in Exeter. She got out of the car for a second but was unsure of where to go so got back into the car. The complainant previously told the police that the appellant pulled into a gas station but left when he saw a police cruiser and she thought about jumping out of the car. On cross-examination, she said that she was now pretty sure that she had not gotten out of the car. She explained it was hard to recall what happened and that she was feeling ill during her testimony. The appellant contended that the complainant’s lack of recall on this important point defied logic.

March 2016 Incident

[20] The complainant told the police that the appellant snapped her sunglasses after he took them off her face. At trial, she testified she did not see what happened to them afterward. In cross-examination she said that her friend told her the appellant broke the sunglasses.

[21] The complainant told police she had gone to Tim Horton’s to call for help; however, at trial she said she went to a payphone. She explained the payphone was near or in that store.

[22] The complainant offered no explanation as to how she was able to make the call to the CAS worker from the payphone if the appellant was assaulting her. On cross-examination, the complainant testified that she called out to a “guy” for help when the appellant was dragging her back from the payphone, but he did not intervene. The complainant agreed that she did not mention this witness to the police. She did not think it was important.

[23] The complainant conceded that her CAS worker came to the house in response to her call but left without calling police. The appellant contended it was improbable that the CAS worker would have left or not contacted the police if there was concern about his conduct.

Trial Judge’s Decision & Reasons

[24] The trial judge concluded the complainant gave her evidence in a credible manner. The inconsistencies are expected when testifying approximately 19 months after the incidents.

[25] He appreciated the issue was whether the complainant’s testimony was believable or if the inconsistencies were so numerous as to discount her evidence as a whole. He acknowledged there was a “major inconsistency” regarding her evidence about stopping at the gas station. However, the complainant acknowledged the inconsistency and adopted her police statement. He explained that perfect recall was not expected, especially in the circumstances.

[26] The trial judge found that the appellant confined the complainant in his car, drove around for hours and would not let her leave. The evidence of the appellant’s threat to crash the car and kill both of them was not really challenged at all in cross-examination. The texts and 911 calls corroborated her evidence. The texts were “telling” and there was no “air of reality” to the appellant’s contention that the complainant colluded with her friend.

[27] The trial judge accepted that the complainant’s evidence supported convictions on assault and mischief as it related to the damage of her purse in March 2016. She was not a “totally unbelievable” witness. Her evidence was untainted. Whether she stated she went to the payphone or to Tim Horton’s did not amount to a contradiction. Contradictions in other aspects of her evidence were “slight” and “not significant”. The appellant could have called the CAS worker regarding the complainant’s call and her attendance at the house. In any event, the worker was not present at the assault. He accepted the Crown’s submission that the offences of unlawful confinement and mischief as it related to damage to the sunglasses and cell phone during were not made out.

Standard of Appellate Review

[28] This summary conviction appeal engages s. 686(1)(a)(i) of the Criminal Code. An appellate court must re-examine and to some extent at least, reweigh and consider the effect of the evidence. I may overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, I conclude the verdict is unreasonable. [2] However, this is done sparingly and appellate courts will only interfere with findings of credibility in exceptional circumstances. [3] An appellate court should show great deference to findings of credibility made at trial.

[29] An appellate court may only intervene in a trial judge’s credibility analysis if that analysis is the subject of a palpable and overriding error. [4] Although significant testimonial inconsistences should be addressed, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons. Finally, an appellate court should not interfere with a trial judge’s findings of credibility if the core of the complainant’s allegations against an appellant remain largely intact on a review of the entirety of the evidence. [5]

[30] The question is whether it was a reasonable verdict. [6] I am not permitted to re-try the case and substitute my view. I cannot interfere if there was an evidentiary basis upon which the findings could reasonably have been made. [7]

[31] The standard of review on a question of law is correctness. The standard of review of a question of fact is palpable and overriding error. With a question of mixed fact and law involving the trial judge’s interpretation of the evidence as a whole, the standard of review is palpable and overriding error. If a mixed question of fact and law involves the interpretation of a legal standard, then the characterization of the standard or its application is subject to the standard of correctness. [8]

Did the trial judge err in curtailing cross-examination of the complainant?

[32] During examination the Crown referred the complainant “to a time in March”. Review of the transcript indicates the Crown intended to direct her testimony to the March 2016 payphone incident. However, the complainant first answered that this was a time when she called the police as the appellant and his mother tried to push her down the stairs. The Crown clarified that occasion was separate from the payphone incident and then focused examination on the latter incident.

[33] The appellant cross-examined the complainant on her account that he and his mother tried to push her down the stairs. The complainant confirmed that she called the police, the police attended at the home and interviewed her. The Crown objected to this evidence on the basis of relevance. The appellant contended the Crown put this evidence into play.

[34] The trial judge questioned the relevance of the incident to the proceedings, commenting that “are we not now almost on a collateral fact situation…” The appellant argued the issue was relevant to demonstrating the complainant’s inclination to falsely accuse him. The trial judge asked whether the appellant intended to call evidence on the incident, stating: “Isn’t that violating the collateral fact rule that says you ask about something that’s off to the side, you’re stuck with the answer.”

[35] The appellant advised he had only one more question on the incident, which the trial judge permitted. The complainant confirmed that to her knowledge, the police did not charge the appellant or his mother in relation the call. The trial judge refused to allow a further question regarding the incident. He referred to the collateral fact rule and found the prior incident had no direct relevance to the trial. The appellant argued relevance on the basis that police have a policy mandate to make an arrest on a report of domestic assault. The trial judge cited relevance as the reason for refusing further questioning in this area.

[36] I accept the collateral fact rule was not engaged in the appellant’s line of questioning. It would be an error of law to curtail cross-examination on this basis. The collateral fact rule operates to prevent a party from calling extrinsic contradictory evidence to undermine the credibility of an opposing party’s witness in relation to a collateral issue. It does not operate to confine the scope of what is otherwise proper cross-examination. Cross-examination is fundamental to a fair trial and counsel on both sides are to be afforded wide latitude to test a witness’ credibility, even in relation to collateral matters. [9]

[37] Reviewing the cross-examination and the trial judge’s reasoning as a whole, I conclude the trial judge did not apply the collateral fact rule. He raised the rule in questioning whether the appellant intended to call evidence on the incident. He refused further examination on the basis of relevance as it related to a collateral issue. The Appellant did not apply to call collateral evidence. This raises the issue as to whether the trial judge erred in limiting cross-examination.

[38] Cross-examination is crucial to an accused’s ability to make full answer and defence, particularly when credibility is the central issue in the trial. However, the right to cross-examination has never been unlimited. A trial judge has the discretionary power to exclude logically relevant evidence as being too slight a significance or as having too conjectural and remote a connection. [10] A trial judge is not obliged to permit an unlimited cross-examination where there is no need for it or no practical result in allowing it to continue.

[39] The trial judge did not err in limiting cross-examination on the prior incident. The complainant conceded that to her knowledge, the police did not lay in charges as a result of her report. Any further questioning of the complainant on this issue would be too slight a significance to the matters in issue and not apt to assist in the resolution of the areas in dispute. The trial judge had sufficient information before him regarding the issue.

[40] If the limit on cross-examination was in error, I find the error did not result in a substantial wrong or miscarriage of justice: s. 686(1)(b)(iii). The limit on questioning in this area did not preclude the appellant from putting forward his theory. The complainant conceded the police did not lay charges in response to her report of the prior incident. The appellant did not seek to call evidence on the prior incident. When the reasons for judgment are considered in their entirety, any error on this minor aspect of cross-examination could not have impacted on the verdict.

Did the trial judge err in his assessment of the complainant’s credibility?

[41] I am not persuaded that the trial judge made an error in his assessment of the complainant’s credibility. His oral reasons for judgment demonstrate he was alive to the inconsistencies in the complainant’s evidence, spent time in addressing them and explained why he found the complainant credible.

[42] His reasons as a whole show that he did not assess her credibility based on demeanour alone. He addressed the inconsistency regarding whether the complainant got out from the car at the gas station. He summarized the other inconsistencies cited by the appellant, including whether she was texting out in the open or whether she was hiding her cell phone. He explained his reasons for accepting her evidence in conjunction with the other evidence he found to be corroborative.

[43] With respect to the March 2016 incident, he again addressed the complainant’s evidence and found there was not a serious difference in her evidence to affect her credibility.

[44] I conclude the trial judge’s assessment of her credibility was supported by a reasonable view of the evidence and that there is no basis for me to interfere with his conclusions.

Disposition

[45] I find the trial judge did not err in limiting the cross-examination of the complainant or his assessment of the complainant’s credibility. For reasons given, this appeal is dismissed.

Justice Kelly Tranquilli Released: June 28, 2019

COURT FILE NO.: 12/18AP Goderich DATE: 20190621 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – Kurtis Ellul Appellant REASONS FOR JUDGMENT Tranquilli J. Released: June 28, 2019

[1] Kienapple v. R., [1975] 1 SCR 729. [2] R. v. W.(R.), [1992] 2 S.C.R. 122 at 131-132. [3] R. v. Benson, [2015] ONCA 827 at 21. [4] R. v. D.T., 2014 ONCA 44 at 80. [5] R. v. R.A., 2017 ONCA 714 at 44-46. [6] R. v. Griffin, 2016 ONSC 2448 at 51. [7] R. v. Flynn, 2019 ONSC 1228 at 7. [8] Housen v. Nikolaisen, 2002 SCC 33 at 19-37. [9] R. v. A.C., 2018 ONCA 333 at 46-48. [10] R. v. Osolin, [1993] 4 S.C.R. 593 at 664-666.