R v Okelu, 2021 ABQB 196

Court of Queen’s Bench of Alberta Citation: R v Okelu, 2021 ABQB 196 Date: 20210315 Docket: 180605131S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Okechi Eliot Okelu Appellant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice J.S. Little _______________________________________________________ Appeal from the Conviction (October 11, 2019) and Sentence (March 11, 2020) of The Honourable Judge C Sharpe I. Introduction [ 1 ] Mr. Okelu was convicted by Judge Sharpe of assault causing bodily harm on his former domestic partner, Ms. Ross. He was

sentenced to 9 months incarceration and a $30,000 payment in restitution. [ 2 ] Mr. Okelu appeals the conviction and, if the conviction is upheld, the sentence. The Crown concedes the sentence appeal. [ 3 ] The narrative common to the appellant and complainant is that after their domestic break up, the complainant came to the appellant’s residence to pick up some personal items. He resented her presence. They had words. She threw some of Mr. Okelu’s personal belongings out the door, and a physical altercation occurred, during which he overpowered her.

She remembers nothing after that until she found herself outside the residence face down on cement with injuries. II. Grounds of Appeal 1. Credibility Findings [ 4 ] Ms. Ross testified that during the physical altercation, Mr. Okelu held her down in the kitchen, strangled her to the point of unconsciousness, and she woke up outside on the pavement, face down.

He testified that he held her to the floor in the house and then saw her trip and fall on her way out the door. [ 5 ] The appellant testified that he “put her down on the kitchen floor, I did this not with tremendous force but to restrain her from throwing my items…I then whispered in her ear and told her, Are you going to stop throwing my items…”(Aug 1, p 8). He denied ever choking her. [ 6 ] The trial judge accepted the evidence of the complainant that Mr.

Okelu grabbed her, put her to the floor, and then choked her to the point of unconsciousness, which is why she could not remember how she got outside or sustained her injuries. [ 7 ] In her reasons, the trial judge stated that she believed part but not all of Mr. Okelu’s evidence. The appellant argues that her rejection of the exculpatory portions of his evidence are based on her faulty recollection of his testimony. [ 8 ] I note that the trial took place over two days: May 24, 2019 and August 1, 2019.

In her reasons, given October 11, 2019, the trial judge referred to having obtained transcripts, to which I refer herein. I am satisfied that she was not relying entirely on her own notes. [ 9 ] The trial judge referred to Mr. Okelu’s testimony of putting the complainant on the floor, or that they laid down on the floor, as defying common sense and being fanciful because they were in the midst of an argument that had turned physical. Granted, that is not an exact recitation of Mr.

Okelu’s testimony, which was that he had grabbed her by the biceps and put her on the floor and was keeping her there by his own weight. But had Judge Sharpe recited his words more precisely, his version would have been no less fanciful given her conclusion that this was happening in the middle of a fight. [ 10 ] Similarly, she rejected his testimony about his level of anger and commented that he would not acknowledge the size difference between him and the complainant.

In her words: I found his evidence on these points to be evasive, self-serving and at times defying common sense. (October 11, 2019, p 5) [ 11 ] With respect to the complainant’s testimony, the trial judge reported the following: Ms. Ross testified in a forthright and detailed manner. Her testimony was consistent throughout. She readily acknowledged many things that were not in her favour, including throwing Mr. Okelu’s belongings and striking him with objects.

What is also of significance in determining her credibility is that she did not embellish in any way specifically with respect to how she came to be face down, injured on the sidewalk.

She acknowledged that she doesn’t know how she came to be there. (October 11, 2019, p. 5) [ 12 ] The appellant’s main argument boils down to a claim that the trial judge rejected his testimony and then filled in the blanks in the complainant’s memory, converting a “he said and she does not remember” case to a “he said she said” case, with the trial judge effectively determining what the complainant would have said if she could remember. [ 13 ] Dealing with the first part of that argument, a trial judge’s findings of credibility are owed considerable deference.

Simply rejecting his evidence in favour of that of the complainant is not an error. [ 14 ] I deal with the second part of that argument below. 2. R v Villaroman , 2016 SCC 33

[ 15 ] In relation to the complainant’s injuries, the appellant argues that the trial judge did not conduct a fulsome Villaroman analysis into causation to determine whether guilt was the only reasonable inference on the evidence. [ 16 ] Mr. Okelu’s trial counsel, who was not counsel on this appeal, referred to Villaroman in his submissions at trial. The trial judge clearly was live to the issue and the law. In her reasons she states: For these reasons, I accept the evidence of the complainant. The injuries she sustained were as a result of the fall. One of two things happened.

Either she tripped and fell or the accused pushed her. Either way, the injuries are as a result of the actions of the accused. If she tripped, rather than was pushed, the only reasonable inference to be made is that she did so because she had just been choked to the point of unconsciousness. (October 11, 2019, p 5) [ 17 ] This clearly is an application of the principles in Villaroman . In oral argument, counsel for the appellant referred to the possibility that the complainant may have tripped on a faulty step on her way out the door (August 1, 2019, pp 72, 88).

The trial judge dealt with that possibility in the excerpt above. It is not clear to me what other innocent possibilities the trial judge should have considered as possibly resulting in the complainant’s injuries. [ 18 ] The appellant further argues that the trial judge’s conclusion that either the appellant pushed her or that she was disoriented from being choked, without expert or other evidence, was improper speculation.

As the Crown points out, a judge does not need expert evidence to conclude that a person who was held down by someone larger and choked to the point of unconsciousness might be disoriented when she stood up and tried to run away. 3. Misapprehension of Evidence [ 19 ] Overlapping the appellant’s arguments respecting credibility, the appellant argues that the trial judge misapprehended his evidence on several key points. [ 20 ] The first misapprehension the appellant points out relates to the size difference between him and the complainant. At one point in her reasons, the trial judge stated that Mr.

Okelu was substantially bigger, when in fact he testified only that he was bigger, not substantially bigger. The evidence was that he was 75 pounds heavier and 6 inches taller than the complainant. The trial judge saw them both in her courtroom, and by any objective standards, he is substantially bigger. This is not a misapprehension of evidence. [ 21 ] The appellant argues also that the trial judge found that he was yelling on a 911 call, which he denied. But the trial judge heard the 911 call played. She stated in her reasons that he was clearly angry and yelling, despite his testimony to the contrary.

That is a finding of fact which I cannot disturb without actually listening to the 911 call, and that is not my function here. In any event, I note that the appellant himself acknowledged at one point that “Well, I just yelled, like, What are you doing?” (Aug 1, 2019, p 8). [ 22 ] I note further that in her reasons, in rejecting Mr.

Okelu’s testimony that he was “talking highly” as opposed to yelling, the trial judge noted that: “it is not of particular significance, but having listened to the recording, he was clearly yelling.” (October 11, 2019, p. 4) [ 23 ] Even if the trial judge had found some relevance in whether or not Mr.

Okelu was yelling, I reject the appellant’s argument that, without defining the word “yelling” it was an error for the trial judge to find that the appellant “lied” about whether he was yelling. [ 24 ] In R v CEK , 2020 ABCA 2 , our Court of Appeal confirms that a misapprehension of the evidence must rise to the level of materiality for it to be thought to have played an essential

part in the reasoning process. [ 25 ] I do not find that the trial judge’s conclusions about Mr. Okelu’s size or the level of his voice, particularly because the trial judge attributed no significance to the latter, rise to that level of materiality. [ 26 ] For that reason, I reject the appellant’s argument that these misapprehensions coloured the trial judge’s credibility findings. III. Conclusion on Conviction Appeal [ 27 ] The appellant’s arguments amount to a plea to re-litigate the evidence because the result clearly was unfavourable to him.

That, of course, is not the test for an appeal. [ 28 ] I find no errors on questions of law. [ 29 ] I find no palpable and overriding errors on questions of fact.

[ 30 ] The verdict reached is one that a properly instructed jury, acting reasonably, could have reached. [ 31 ] I therefore dismiss the conviction appeal. IV. Sentence Appeal [ 32 ] In its factum, the appellant argues that the learned trial judge erred in rejecting the joint submission put forward. Because it originally supported the joint submission, the Crown concedes the sentence appeal.

But I wish to make a very few comments on the appellant’s arguments. [ 33 ] The judge’s sentencing reasons state that the complainant’s injuries included a laceration to her chin, 11 damaged teeth, and a broken finger. [ 34 ] The Crown and defence made a joint submission for a suspended sentence with 31 months probation and $30,000 in restitution, payable at $1000 per month. That restitution was intended to compensate the complainant for time she spent on disability as a result of her injuries. [ 35 ] Judge Sharpe expressed concern about that joint submission and requested further submissions, which she received.

After a further hearing, she rejected the joint submission: If Anthony-Cook does apply here, the joint recommendation on sentence for 31 months probation would bring the administration of justice into disrepute. The proposed sentence is unhinged from the circumstance of this offence and this offender such that the proposed sentence would be viewed by reasonable informed members of the public as a breakdown in the proper functioning of the justice system… It appears to me that Mr.

Okelu is attempting to buy his way out of gaol. (March 11, 2020, p. 8), and imposed a custodial sentence of 9 months and $30,000 restitution. [ 36 ] Because the Crown concedes it, I grant the sentence appeal and reinstate the joint submission. [ 37 ] But in doing so, I do not wish to be understood to be disagreeing with Judge Sharpe’s analysis of the joint submission at the time or how she dealt with counsel respecting her concerns. I simply recognize the Crown’s concession and acknowledge that this long after the fact, no sentencing objective would be served by incarceration.

Given her findings of fact, Judge Sharpe was entitled to question the joint submission, and she properly gave counsel an opportunity to respond to her concerns. [ 38 ] As discussed briefly with counsel, the joint submission also provided for child support in an amount of $350 per month for 6 months, the stated intent being that the monthly restitution amount not short change child support which apparently was being paid without an order. [ 39 ] I was given no authority that a criminal sentence can purport to directly require payment of child support, though I note from the sentencing transcript that counsel referred to an earlier decision of the judge which confirmed that it can be done.

Looking at the Criminal Code , it could be that s. 734 permits a specific allocation to a provincial program such as MEP. I understand from counsel that that amount was paid for six months from the conviction date. [ 40 ] But since neither counsel takes issue with it, we can leave the enforceability of that portion of the sentence for another day. V. Conclusion on Sentence Appeal [ 41 ] With the sentence appeal allowed, the sentence imposed is: • Suspended sentence with 31 months probation; • Restitution payable to Ms.

Ross of $30,000, payable by monthly instalments of $1000 beginning April 1, 2021 and continuing on the first day of each month thereafter until paid; • Child support in the amount of $350 per month for a period of six months from and including March 11, 2020, the original sentencing date. [ 42 ] Counsel are free to contact me if further clarification is required respecting the sentence. [ 43 ] Thank you to both Mr. Wolch and Mr. Craggs for their comprehensive written and oral submissions.

Heard on the 11 th day of March, 2021. Dated at the City of Edmonton, Alberta this 15 th day of March, 2021. J.S. Little J.C.Q.B.A. Appearances: Mr. L. Craggs for the Respondent Mr. G. Wolch & Ms. M. Friedland for the Appellant