COURT FILE NO.: CR-19-40000055-00AP
DATE: 20210702
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KULA ELLISON
Aaron Del Rizzo, for the Crown
Kula Ellison, self-represented
HEARD: June 11, 2021
R. MAXWELL J.
[1] The appellant, Ms. Ellison appeals from the conviction and sentence entered on June 12, 2019 by Justice Tim Breen of the Ontario Court of Justice.
Factual Background
[2] On December 23, 2017, the appellant was charged with two counts of assault arising from an incident which occurred at a rental property at 30 Covington Road in Toronto. The appellant and her roommate, Drazenko Starcevic, occupied an apartment in the building. There was a history of litigation surrounding the tenancy. On December 22, 2017, after receiving an eviction notice, the appellant obtained an order from the Divisional Court staying the eviction.
[3] On December 23, 2017, Dominic and Oksana Leo, the landlords of 30 Covington Road, attended at the building in response to a reported fire alarm. At some point, a confrontation took place between the appellant and Mr. and Ms. Leo. The beginning of the confrontation was captured on Ms. Leo’s cell phone camera. She had been recording the area where the fire alarm had been pulled when the confrontation began.
[4] The trial took place over two days – May 1 and 2, 2019. The Crown’s case consisted of the evidence of Dominic and Oksana Leo, the video recording made by Ms. Leo on her cell phone, and photographs of the injuries to both Domenic and Oksana Leo taken by police on the evening of December 23, 2017 at the Toronto East General Hospital.
[5] The appellant testified on her own behalf. She acknowledged that she had been involved in an altercation with Dominic and Oksana Leo, but that Oksana Leo was the aggressor. She testified that Oksana Leo pulled her from her apartment and that both she and Domenic Leo assaulted her in the hallway. At the trial, she called Mr. Starcevic who testified that he observed all three struggling in the hallway. He intervened to separate them, which ended the altercation. He testified that he did not see how the altercation began.
[6] In reasons for judgment delivered on May 2, 2019, the trial judge found that the Crown had established beyond a reasonable doubt that the appellant assaulted both Domenic Leo and Oksana Leo. He rejected the appellant’s evidence and that of Mr. Starcevic and accepted the evidence of Mr. and Ms. Leo, which he found was corroborated by the cell phone recording and the photos of their respective injuries. In particular, he found that the confrontation started in the hallway, not in the appellant’s apartment, and that the appellant was the aggressor in the confrontation.
[7] The trial judge ordered a pre-sentence report and adjourned the sentencing in the matter to June 12, 2019. On June 12, 2019, the appellant was sentenced to 30 days in jail on each count, to run concurrently, for a global sentence of 30 days in jail. She has since served her sentence.
Grounds for Appeal
[8] On appeal, the appellant argues that the trial judge committed the following errors:
The trial judge failed to consider the evidence presented by the defence and/or failed to apply equal scrutiny to the Crown’s evidence and the defence evidence;
The trial judge interfered with the appellant’s examination and cross-examination of witnesses;
The trial judge erred in not admitting a 9-1-1 call which the appellant sought to introduce into evidence;
The trial judge erred in admitting photographs tendered by the Crown and the cell phone recording which were not date and timestamped;
The trial judge erred in not permitting the appellant to call the Officer-in-Charge, Detective Constable Jason Fenton;
The trial judge erred in failing to direct that the complainants’ evidence be taken through an interpreter;
The trial judge erred in relying on the appellant’s criminal record and a pre-sentence report in sentencing.
[9] In written submissions, the appellant included an additional ground of appeal. She alleged that the trial judge erred in dismissing her application under s. 11(b) of the Canadian Charter of Rights and Freedoms to stay the charges for delay. In oral submissions, the appellant abandoned this ground of appeal.
General Legal Principles
[10] On a summary conviction appeal, the standard of review is one of deference. On a summary conviction appeal, the question is whether, based on the evidence, the decision of the trial judge could have been reasonably reached. An appeal should only be allowed where the decision is not supported by the evidence, is based on a misapprehension of the evidence, is clearly wrong in law, is clearly unreasonable, or there is a miscarriage of justice: R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233, at para. 32.
[11] Findings made by a trial judge will attract deference. To interfere with a finding of fact, the trial judge must have failed to consider relevant evidence to a material issue, erred in the substance of the evidence, or failed to give proper effect to the evidence: R. v. C.R., 2015 ONCJ 89, [2015] O.J. No. 911, at paras. 29-32; R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.), at para. 83.
[12] On credibility and on factual matters, a reviewing court must give due deference to the trial judge who is in the more advantageous position to assess credibility and make findings of fact, having heard and seen the evidence: C.R., at para. 31; R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 46; R. v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363, at para. 14.
Issues on Appeal
Did the Trial Judge Err in Failing to Consider the Defence Evidence or in Applying Unequal Scrutiny to the Evidence?
[13] Under her first ground of appeal, the appellant argues that the trial judge “did not listen” to the evidence she provided or that of Mr. Starcevic. Further, she submits that he ignored photographs she presented of her injuries which, she argues, raised a reasonable doubt about the complainants’ evidence and supported her position that she was not the aggressor in the confrontation. As I understand the appellant’s submission, her complaint is that the trial judge did not give sufficient consideration to the defence evidence, or alternatively, that the trial judge applied unequal scrutiny to the evidence before him.
[14] I do not accept the appellant’s argument that the trial judge failed to consider the defence evidence, or that the trial judge applied uneven scrutiny to the evidence before him. Reading the trial judge’s reasons, he properly applied the framework of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and, in doing so, fairly reviewed all the defence evidence before concluding that the evidence did not raise a reasonable doubt.
[15] That the trial judge was alive to the proper analysis of how to weigh the evidence is evident at the beginning of his analysis, where he stated:
The case, from the brief summary above, presents as two conflicting narrative accounts of events. It’s important at the outset to observe that the resolution of the conflict presented by the evidence cannot be made on the basis of choosing the most persuasive version. Such an approach undermines the presumption of innocence, and effectively, shifts the persuasive burden to the defence.
The proper application of the criminal standard and burden of proof can be promoted by the application of the analytical framework articulated in a case of R. v. W.D. […] (Transcript of Proceedings, May 2, 2019, at p. 67.)
[16] With those principles in mind, the trial judge then concluded that the appellant’s evidence was not reliable or credible. He provided numerous reasons for this conclusion.
[17] As to the appellant’s reliability, he concluded that her state of intoxication impacted the reliability of her account. There was ample evidence to support this conclusion as the trial judge set out in his reasons for judgment. The appellant admitted that she was intoxicated during the incident. Further, officers who responded to the incident testified to the appellant’s extreme state of intoxication. The trial judge accepted the police officers’ evidence that, when they arrived, the appellant answered the door naked, fell against her apartment wall, slid down to the floor, and passed out. He accepted police evidence that the appellant’s condition was such that an ambulance was called to transport her to the hospital: Transcript of Proceedings, May 2, 2019, at p. 68.
[18] The trial judge then set out several reasons for his conclusion that the appellant’s evidence was also not credible. He first found the appellant bore a continuing animus toward Domenic and Oksana Leo based on his review of the video recording and the appellant’s evidence at trial. He pointed to the evidence from the cellphone recording. He observed that, immediately before the altercation, the appellant was denigrating Mr. and Ms. Leo and that the appellant “…took every opportunity to denigrate the Leos” during the trial: Transcript of Proceedings, May 2, 2019, at p. 68.
[19] The trial judge held that the cellphone recording captured how the altercation began and contradicted the appellant’s version of events that the Leos barged into her apartment, that the altercation started inside her apartment then spilled into the hallway, and that Ms. Leo was the aggressor: Transcript of Proceedings, May 2, 2019, at pp. 68-69.
[20] Therefore, I do not agree that the trial judge failed to “listen” to the appellant’s evidence. Rather, he gave it careful consideration and assessed it on its own and in the context of the rest of the evidence and found it neither reliable nor credible.
[21] Moreover, it is not the case that the trial judge did not consider the photographs tendered by the appellant. He assessed the photos, taken on December 25 and 27, 2017 which showed that the appellant had bruising on her arms and legs. He concluded that the photos supported the uncontroversial fact that the appellant was involved in an altercation but did not assist on “the essential question of who was the aggressor in the altercation”: Transcript of Proceedings, May 2, 2019, at p. 69.
[22] Finally, the trial judge found that Mr. Starcevic’s evidence lacked credibility, in that he was evasive, argumentative, and was “clearly biased”: Transcript of Proceedings, May 2, 2019, at p. 69.
[23] While the trial judge did not refer to any specific parts of Mr. Starcevic’s evidence in coming to this conclusion, the record is replete with examples which support his conclusion. For example, Mr. Starcevic testified in chief:
The first time, every time the fire alarm is pulled, they just happen to be there, but they don’t live there, you know. It’s funny how that works, you know. And instead of trying to, you know, stage some kind of a frame-up, you know, and that didn’t really work, so then they basically go for the assault angle. You know, they assault you. They walk into the apartment, they assault you, but somehow or other you assaulted them…” (Transcript of Proceedings, May 1, 2019, at p. 160.)
[24] In another exchange, when the Crown asked Mr. Starcevic what he was doing before he entered the frame of Ms. Leo’s cellphone recording, he responded, “I don’t know, sleeping early in the morning … waiting for Santa Claus. What else, what was I doing? What do you mean, what was I doing? What kind of question is that? I was, you know, what do you want me to say?”: Transcript of Proceedings, May 1, 2019, at pp. 178-179.
[25] As a further example, when asked to confirm that he was not present when firefighters arrived at the building in response to the fire alarm, Mr. Starcevic became argumentative and defensive: Transcript of Proceedings, May 1, 2019, at pp. 180-184.
[26] These few examples illustrate the general tenor of Mr. Starcevic’s evidence. In my view, there was ample basis for the trial judge to conclude that Mr. Starcevic was highly partial toward the appellant, bore animus toward the complainants, and was not a credible witness.
[27] In any event, the trial judge concluded that Mr. Starcevic’s evidence did not assist on the crucial question of how the altercation started and who the aggressor was, as he was not present for the beginning of the confrontation: Transcript of Proceedings, May 2, 2019, at p. 69.
[28] Having found that neither the appellant’s evidence, nor the defence evidence taken together, raised doubt, the trial judge went on to consider the evidence of Mr. and Ms. Leo. The trial judge prefaced his analysis of the complainants’ evidence by acknowledging that the complainants also held animus toward the appellant and Mr. Starcevic related to the ongoing tenancy dispute. He properly noted that the credibility of both complainants’ evidence had to be assessed through this contextual lens. He stated:
I’m mindful that in light of the fact of the tenancy dispute, that there may have well been animus held by both Oksana and Domenic Leo toward Ms. Ellison, and the existence of such animus must be considered in evaluating the truth of their evidence, and I have that in mind when I evaluate their testimony. (Transcript of Proceedings, May 2, 2019, at p. 70.)
[29] The trial judge concluded, notwithstanding the history between the complainants and the appellant, that the complainants were both credible and reliable. He found Ms. Leo’s evidence that the appellant was the aggressor to be substantially confirmed by the cellphone recording. It was open to the trial judge to find, as he did, that based on the cellphone recording, the appellant was angry and abusive toward the complainants and that the appellant moved aggressively toward Ms. Leo in the hallway: Transcript of Proceedings, May 2, 2019, at pp. 70-71.
[30] He also found that the cellphone recording was consistent with Mr. and Ms. Leo’s evidence as to why they were present in the building that day (to check on the fire alarm). It was open to the trial judge to conclude that the cellphone recording supported the complainants’ evidence that the confrontation started in the hallway where they were checking the fire alarm, not in the appellant’s unit.
[31] The trial judge further found that Ms. Leo’s account of how she was assaulted by the appellant was corroborated by the photographs taken by the police which showed scratches to her face and patches of hair having been pulled from her head: Transcript of Proceedings, May 2, 2019, at p. 71.
[32] He found Mr. and Ms. Leo’s accounts to be internally consistent and consistent with the cellphone recording and the photos.
[33] Accordingly, I find that the trial judge considered all the defence evidence, provided cogent reasons for rejecting the appellant’s evidence and that of Mr. Starcevic, and accepting the evidence of Mr. and Ms. Leo. The judgment provided the appellant with reasons for why she was convicted. Further, the record amply demonstrates that the trial judge engaged in a proper weighing of all the evidence under the W. (D.) framework and applied equal scrutiny to the defence evidence and the Crown evidence.
[34] This ground of appeal is dismissed.
Did the Trial Judge Err in Interfering with the Examination and Cross-Examination of Witnesses?
[35] The appellant argues that the trial judge interfered with her ability to cross-examine witnesses by interrupting her during cross-examination. She also argues that the trial judge re-phrased some of her questions in such a way that he “helped” the witnesses to answer the questions. She described the trial judge’s intervention in the examinations as amounting to “oath-helping” and “coaching” the witnesses. She argues that this interference unfairly impacted her ability to cross-examine witnesses and undermined her ability to present a defence.
[36] Respectfully, I do not agree. Trial judges have a firmly rooted authority to control proceedings over which they preside to ensure the proceedings are fair, effective, and efficient for all parties: R. v. John, 2017 ONCA 622, [2017] O.J. No. 3866, at para. 47; R. v. Snow, 2004 CanLII 34547 (ON CA), [2004] O.J. No. 4309 (C.A.), at para. 24; R. v. Felderhof, 2003 CanLII 37346 (ON CA), [2003] O.J. No. 4819 (C.A.), at para. 41. There is an operating presumption that where a trial judge intervenes, they have not done so unduly: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal refused 304 O.A.C. 395 (note).
[37] Further, an analysis of a trial judge’s interventions must be looked at in the context of the entire trial and evaluated cumulatively to determine whether the interventions “[…] create an appearance of an unfair trial to the reasonable person present throughout the trial proceedings.”: John, at para. 51. See also Hamilton, at para. 32.
[38] In reviewing the transcript of the proceedings, the trial judge’s interjections were made for the purpose of curtailing questions which were clearly irrelevant, or to direct the appellant’s attention to rules of evidence and procedure. In oral submissions, the appellant pointed to an exchange with the trial judge during which the trial judge refused to allow the appellant to ask Ms. Leo about her religion which she argues unduly interfered with her ability to challenge Ms. Leo’s credibility. In my view, the trial judge properly stopped the appellant from pursuing this line of questioning, as Ms. Leo’s religious beliefs are not relevant to her credibility or any issue at trial.
[39] While the appellant did not point to any other specific examples of the trial judge interjecting during her examination of witnesses, there are certainly numerous occasions upon which the trial judge interjected. However, the trial judge’s interjections during the appellant’s examination of witnesses were necessary to ensure trial fairness by alerting the appellant to the rules of evidence and procedure, including for example:
To alert the appellant to rules surrounding the admissibility of photographs and the need to have a witness identify the photograph (Transcript of Proceedings, May 1, 2019, at pp. 59, 141);
To alert the appellant to the requirement that she ask questions relevant to the issues before the court. For example: the trial judge intervened when the appellant asked questions to one of the complainants about Crown disclosure (Transcript of Proceedings, May 1, 2019, at pp. 64-65); questions concerning a separate legal proceeding (Transcript of Proceedings, May 1, 2019, at pp. 112, 156); questions about the how long the complainant has been in Canada and why she came to Canada (Transcript of Proceedings, May 1, 2019, at pp. 121-122); questions about the complainants’ religion (Transcript of Proceedings, May 1, 2019, at pp. 122); and statements implying racial bias in the proceedings (Transcript of Proceedings, May 1, 2019, at p. 173);
To stop the appellant from making lengthy statements or arguments during the examination of witnesses and invite her to ask questions (Transcript of Proceedings, May 1, 2019, at pp. 66, 87, 91, 100-103, 105, 111);
To rephrase a statement made by the appellant into a question for the witness to answer (Transcript of Proceedings, May 1, 2019, at p. 104);
To alert the appellant to the rules of evidence concerning prior consistent statements (Transcript of Proceedings, May 1, 2019, at p. 195);
To stop the appellant from asking compound questions (Transcript of Proceedings, May 1, 2019, at p. 108);
To inform the appellant about the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 H.L., requiring that the appellant put her version of events to the witness to give the witness the opportunity to respond to the competing version of events (Transcript of Proceedings, May 1, 2019, at pp. 117-118).
[40] Viewed cumulatively, and in the context of the rest of the whole trial, I am not persuaded that any unfairness resulted from the trial judge’s interjections. The interjections did not prevent or impede the appellant from advancing her defence at trial that the complainants were not credible. In my view, the trial judge did his best to confine himself to his responsibilities and allow the appellant to examine and cross-examine witnesses. However, the appellant’s position as a self-represented litigant, made it necessary for the trial judge to provide guidance on rules of evidence and procedure as well as curtail unnecessary and irrelevant lines of questioning. The interjections were necessary in order to maintain a fair proceeding which complied with rules of evidence and procedure. This ground of appeal is dismissed.
Did the Trial Judge Err in Not Admitting the 9-1-1 Call?
[41] During her evidence, the appellant sought to introduce a 9-1-1 call from the evening of the incident. The trial judge refused to allow the appellant to play the 9-1-1 call as part of her case.
[42] During re-examination of her own witness, Mr. Starcevic, the appellant asked to play a 9-1-1 recording from the night of the incident, stating that the 9-1-1 call, “…goes totally well with his [Mr. Starcevic’s] testimony.” The appellant then went on to state that she wished to play the 9-1-1 recording “because what he [Mr. Starcevic] said is on here…”: Transcript of Proceedings, May 1, 2019, at p. 191.
[43] In my view, the trial judge did not err in refusing to admit the 9-1-1 call. As the trial judge explained, the 9-1-1 recording was inadmissible for the purpose the appellant sought to use it, as a prior consistent statement of the witness or as hearsay evidence. The trial judge explained why the appellant could not simply play the 9-1-1 recording as part of her own case. He stated, “Ms. Ellison, a 9-1-1 call isn’t evidence in and of itself. It’s an out-of-court statement. It’s hearsay, okay. It’s inadmissible.”: Transcript of Proceedings, May 1, 2019, at pp. 192-195.
[44] The trial judge then inquired with the Crown whether, based on his knowledge of the content of the 9-1-1 recording, the calls could be admissible under an exception to the hearsay rule, such as res gestae. In the Crown’s view, it did not. The trial judge then provided his ruling:
Okay, Ms. Ellison, there is – as I say, a 9-1-1 call being a statement, an out-of-court statement by a declarant who’s not present as a witness and subject to cross-examination bears all the hallmarks, checks all the boxes for hearsay evidence, and hearsay evidence, generally speaking, is not admissible in a criminal trial. There are some limited exceptions to the admissibility of hearsay evidence, and what Mr. Van Den Bergh has indicated with respect to the contents of these calls or the circumstances in which these calls are made, unless you tell me differently, if these calls are all made after the event is over, the alleged assault on December 23rd, and are reported by various people, whether it’s Mr. Leo or yourself, they do not fit within an exception to hearsay, so they are not substantively admissible.
Having said that, a statement by any witness is always potentially admissible in cross-examination if inconsistent with their testimony, and Mr. Van Den Bergh has indicated that he believes you to be a declarant, or the person who placed one of these 9-1-1 calls. So you should be aware that, in the event that you do testify, it would be open to the Crown to cross-examine you on that statement…
But the statement is not admissible at your instance. You can’t lead evidence of a prior consistent statement to say, in effect, I’m credible because I said the same thing on an earlier occasion. I don’t know if you understand what— … I’m trying to—communicate to you, okay. But it’s not admissible for that purpose. And the information that I have about the content of the tape satisfies me that it doesn’t fit within an exception to the hearsay rule, so it’s therefore inadmissible…. (Transcript of Proceeding, May 1, 2019, at pp. 194-195)
[45] In my view, the trial judge correctly stated and applied the law as it relates to prior consistent statements and the rules against hearsay evidence. The appellant did not establish a basis upon which the 9-1-1 call could be admissible as part of her case.
[46] During oral submissions, the appellant repeated an assertion she made at trial that the 9-1-1 call was admissible because two other judges had ordered it disclosed during judicial pre-trials. This argument seems to rest on a misunderstanding about the distinction between the Crown’s obligation to disclose all potentially relevant evidence and the admissibility of that evidence. As the trial judge explained, simply because the 9-1-1 call formed part of the disclosure, does not make it admissible.
[47] This ground of appeal is dismissed.
Did the Trial Judge Err in Admitting Photographs and the Cell Phone Video Tendered by the Crown which were not Date or Time-Stamped?
[48] The appellant argues that the trial judge erred in admitting photographs tendered by the Crown on the basis that the photographs and video recording did not contain a date or timestamps.
[49] The admissibility of photographs depends on their accuracy, the fairness of what they depict, and their authentication. Accurate photographs which have been properly authenticated and which fairly depict what they represent are presumptively admissible, assuming they are relevant to an issue at trial: R. v. Andalib-Goortani, 2014 ONSC 4690, 13 C.R. (7th) 128, at paras. 24-28.
[50] Authentication of a photograph or video recording requires consideration of (1) the accuracy of the photograph/video recording in truly representing the facts; (2) the absence of any intention to mislead; and (3) their verification under oath by someone who is capable of doing so: R. v. Creemer and Cormier, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 (N.S.C.A.).
[51] In this case, the Crown tendered photographs which were taken by Constable Kremer. At the trial, Constable Kremer identified photographs he took of both complainants on December 23, 2017 at the hospital following the incident (Exhibits 1a – 1d and 4a – 4h on the trial). Similarly, Ms. Leo was able to identify the video recording she made on her cell phone which captured the beginning of the altercation.
[52] It is not necessary for photographs or video recordings to be date and timestamped to be authenticated. It was open to the trial judge to accept the evidence from the witnesses as to when the photographs were taken, and video recording made. There was nothing in the evidence to suggest the photos or video did not fairly depict what they represented, or that the photos and video recording were misleading.
[53] As such, the trial judge did not err in admitting the photographs and video recording as evidence at the trial.
Did the Trial Judge Err in Refusing to allow the Appellant to Call Detective Constable Fenton as a Witness?
[54] The appellant argues that the trial judge erred in refusing to allow her to call the Officer in Charge, Detective Constable Jason Fenton, as a defence witness at trial. On review of the exchange between the trial judge and the appellant about the appellant’s request to call Detective Constable Fenton as a witness, I do not agree that the trial judge erred in refusing to permit the appellant to call the officer.
[55] As noted above, a trial judge is required to manage the trial and exercise discretion to control the process. Trial judges are entitled to take a number of steps, including focusing the evidence on issues material to the determination of the case: R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 92.
[56] In this case, the trial judge properly inquired with the appellant why she wished to call Detective Constable Fenton, given his role in the case was one of a case manager and not an investigating officer. In response to the trial judge’s question, “[…] what is the evidence that you want to elicit from the officer?”, the appellant replied that she wished to ask Detective Constable Fenton about earlier pre-trials held in the case and whether disclosure of a 9-1-1 recording had been made: Transcript of Proceedings, May 1, 2019, at pp. 146-149.
[57] The appellant also indicated she wished to ask Detective Constable Fenton questions about the conduct of the investigation: Transcript of Proceedings, May 1, 2019, at p. 148. While she did not expand on this point at the trial, in oral submissions on this appeal the appellant indicated she wanted to ask Detective Constable Fenton why he did not speak to her following the incident, to record her version of events.
[58] The trial judge explained to the appellant that the trial was not an opportunity to seek disclosure, and that the 9-1-1 recording had in fact, already been disclosed. He further pointed out that if she wished to raise an argument about the conduct of the investigation, she could have brought an application under the Charter, but did not: Transcript of Proceedings, May 1, at pp. 148-149.
[59] Ultimately, the trial judge ruled that the issues upon which the appellant sought to call evidence through Detective Constable Fenton were irrelevant to the issues to be decided in the case: Transcript of Proceedings, May 1, 2019, p. 148.
[60] I see no error in the trial judge exercising his discretion to refuse to allow the appellant to call Detective Constable Fenton. The proposed evidence was irrelevant to the issues in the case.
Did the Trial Judge Err in Failing to Direct that the Complainants’ Evidence be Given Through an Interpreter?
[61] As I understand the appellant’s argument, the trial judge should have ordered that the complainants give their evidence through an interpreter because English is not their first language. This issue was not raised during the trial. Neither the trial judge, the appellant, the Crown, nor the witnesses raised any requests for interpretation or concerns about the witnesses’ ability to communicate in English. There is nothing in the record to suggest either Mr. or Ms. Leo required the assistance of an interpreter. There is no merit to this ground of appeal.
Did the Trial Judge Err in Relying on the Appellant’s Criminal Record and a Pre-Sentence Report on Sentencing?
[62] The appellant’s criminal record and a pre-sentence report dated June 10, 2019 were marked as exhibits on the sentencing hearing. The appellant argues that the trial judge erred in relying on her criminal record on sentencing because she disputes the accuracy of a disposition noted for a conviction in 1987 for possession of property obtained by crime. Specifically, she disputes that she served 14 days in jail in relation to this conviction, as noted on the criminal record: Transcript of Proceedings, June 12, 2019, at p. 95.
[63] The appellant also argues that the trial judge erred in relying on the pre-sentence report because the report was incomplete, inaccurate, and borrowed from a report written in 2008.
[64] The trial judge did not specifically address the disputed entry in the appellant’s criminal record and the Crown did not seek to prove the disposition from 1987. However, the trial judge’s reasons reflect that he placed very little if any weight on this dated entry. The trial judge referred to the fact that the appellant has a criminal record and noted her most recent entries for aggravated assault in 2002 and assault in 2008. He made no mention of the conviction or the disposition from 1987: Transcript of Proceedings, May 2, 2019, at p. 126.
[65] Therefore, I see no error in the trial judge’s use of the criminal record in that the accuracy of the information he did rely on is not disputed.
[66] With respect to the pre-sentence report, the reasons reflect that the trial judge was aware of the appellant’s position that the report was incomplete and invited the appellant to supplement and where necessary, correct, any aspects of her personal history and background noted in the pre-sentence report. The appellant made extensive submissions about her personal and family background, her history of efforts to address alcohol abuse, and her general health history: Transcript of Proceedings, June 12, 2019, at pp. 105-113.
[67] The pre-sentence report also contained highly derogatory, abusive, and racially-charged statements which the appellant allegedly made to the probation officer during their brief encounter. The trial judge carefully and fairly placed no weight on these specific statements because the appellant disputed that she made the statements. Leaving aside the specific statements, the trial judge concluded that, based on the appellant’s hostile interaction with the probation officer, she was unlikely to be amenable to probationary supervision: Transcript of Proceedings, June 12, 2019, at p. 128.
[68] In any event, the trial judge’s reasons for judgment on sentence reflect that, in his view, the circumstances of the offence and the offender warranted a custodial sentence. He arrived at the sentence based on a cumulative assessment of the circumstances of the offence and the offender. In particular, the trial judge noted the need for denunciation and deterrence, given the “utter contempt” the appellant demonstrated for the complainants, and her criminal record, which reflected a history of violent behaviour: Transcript of Proceedings, June 12, 2019, at pp. 126-129.
[69] I see no error in the trial judge’s decision to admit the pre-sentence report or the criminal record, or the use he made of these materials.
Conclusion
[70] For the reasons set out above, the appeal is dismissed.
R. Maxwell J.
Released: July 2, 2021
COURT FILE NO.: CR-19-40000055-00AP
DATE: 20210702
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KULA ELLISON
REASONS FOR JUDGMENT
R. Maxwell J.
Released: July 2, 2021