R v Pelletier, 2019 SKCA 113

Court of Appeal for Saskatchewan Citation: R v Pelletier , 2019 SKCA 113 Date: 2019-11-01 Docket: CACR3019 Between: Forrest Duane Pelletier Appellant And Her Majesty the Queen Respondent Docket: CACR3038 Between: Darren James Tawiyaka Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Disposition: Appeal dismissed - CACR3019 Appeal dismissed - CACR3038 Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice Ryan-Froslie On Appeal From: CRM 141/2016 (Sask QB), Regina Appeal Heard: January 31, 2019 Counsel: Marianna Jasper for the Appellant, Forrest Pelletier Tyne Hagey for the Appellant, Darren Tawiyaka Andrew Davis for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Forrest Pelletier appeals his convictions and sentence for break and enter committing aggravated assault (s. 348(1)(b)) and two break and enter committing assaults (s. 348(1)(b)).

For each of these offences he received a sentence of seven years incarceration concurrent less 864 days remand credit, for an effective sentence of four years three weeks. [ 2 ] Mr. Tawiyaka was convicted of the same offences as Mr. Pelletier and received a sentence of 6.5 years incarceration less 579 days remand credit, giving him an effective sentence of five years. He appeals his convictions only. [ 3 ] Mr. Pelletier also made an application to adduce fresh evidence at the commencement of the appeal hearing. This was dismissed from the bench. [ 4 ] The decision that follows addresses the appeals of both Mr.

Pelletier and Mr. Tawiyaka. For the reasons hereafter set forth both appeals are dismissed II. FACTS AND BACKGROUND [ 5 ] On November 6, 2015, a group of men and women entered the home of Freddy Cote and his wife, Nicolle Cote. They assaulted him, Ms. Cote, and Mr. Cote’s 10-year-old daughter, K.C. [ 6 ] Mr. Cote had been a high-ranking member of the Native Syndicate [NS] street gang, but his involvement with the gang had tapered off as a result of his addictions. He wanted to leave the gang. Ms.

Cote was aware of her husband’s gang affiliation and often communicated with NS members via texts on her phone on his behalf. [ 7 ] On the date of the offence, Ms. Cote was up late with K.C. watching television. A 20-year-old woman whom Ms. Cote had raised, Tanis Desjarlais, also lived at the residence and was asleep downstairs. After 4:00 a.m., Ms. Cote received a text message from Sydney Starr, whom she had known for some time, saying that Ms. Starr wanted to come over and “bench up” or weigh out some drugs. Ms. Cote woke her husband and showed him the message; he instructed her how to reply. [ 8 ] Ms.

Cote replied to Ms. Starr to let them know when she arrived so that they could put the dogs away and open the door. Ms. Starr texted at about 4:40 a.m. to say they should lock the dogs up. Ms. Cote texted back saying that the dogs were put away and that K.C. was opening the back door. K.C. saw her “Auntie Syd” (Ms. Starr) at the door together with other people. Ms. Starr, two big men, one small man, and another girl entered the house.

[ 9 ] The people, none of whom wore masks, entered the room where Mr. Cote and Ms. Cote were. Ms. Cote told K.C. to run, but Ms. Starr prevented her from leaving. Ms. Cote’s arms were held by one of the men, whom Ms. Cote would later identify as Mr. Tawiyaka. Meanwhile, a man whom Ms. Cote later identified as Mr. Pelletier, pulled Mr. Cote onto the wood floor and began to kick him. He was joined by the man identified as Mr. Tawiyaka. Ms. Cote said she heard Mr. Pelletier say: “Big bro, got to get minutes out.” The men kicked and stomped on Mr. Cote. Ms. Cote called for K.C. to come stand with her, but Mr.

Tawiyaka pushed K.C. back, and Ms. Starr held her. [ 10 ] Ms. Desjarlais was sleeping downstairs. She awoke and started to go upstairs with a pit bull that was growling and barking. When she opened the door into the kitchen, a man she did not know told her to go back downstairs and to take the dog with her. She did that. [ 11 ] After the assault, the intruders left. Ms. Desjarlais called an ambulance. Ms. Cote also texted Ms. Starr at 4:51:56 a.m., just over nine minutes after texting that the dogs had been put away.

This text said “fuckin deadly infront [ sic ] of my kids ! ! ! ! ! ! !” It is this text and the one by Ms. Starr asking that the dogs be put away that situates the home invasion and assaults having taken place between 4:42:34 a.m. and 4:51:56 a.m. [ 12 ] Ms. Cote initially refused to cooperate with the police, saying she knew the street rules and what would happen to a “snitch”. While at the hospital with Mr. Cote that morning, she changed her mind as a result of learning from Ms. Desjarlais that K.C. was frightened and had retreated to the basement with a kitchen knife. [ 13 ] Ms.

Cote gave a statement to the police that morning. In her statement, she identified Mr. Pelletier and Ms. Starr as being among the assailants. She had known Mr. Pelletier for many years through her husband’s involvement with NS. She picked Mr. Pelletier out of a photo lineup, referring to him as “Dog”, the same name one of his associates, Julie Gray, called him when she later testified at trial. [ 14 ] On November 7, Ms. Cote and Ms. Desjarlais exchanged a series of text messages in which Ms.

Cote made various references to “Trevor” and “Uncle Trevor”, indicating he would be seeing them to take statements, that he knew “who it was” and was going to deal with it, and that he would be bringing her and K.C. a “sub”. [ 15 ] Ms. Cote was unacquainted with Mr. Tawiyaka, although she had heard of him. She called him “D.K.”. She was unable to pick him out of a photo lineup some hours after the incident. She said that she attempted to independently investigate this attacker’s identity and that she had heard from other sources that Mr. Tawiyaka was the assailant.

She remained unsure of his identity until she came to his bail hearing and recognized him. [ 16 ] Ms. Gray knew both Mr. Pelletier and Mr. Tawiyaka. She was in a relationship with Mr. Tawiyaka from 2015 to 2016. She became an NS member in the late fall of 2015, after the home invasion, but left the gang the following summer. At the time of the home invasion, she knew that Mr. Tawiyaka, Mr. Pelletier, and Ms. Starr were NS members. [ 17 ] On the day of the offence, Ms. Gray had spent time with Ms. Starr, Mr. Pelletier, and Mr. Tawiyaka at another acquaintance’s home. While there, Ms. Starr kept showing Mr.

Pelletier something on her phone until he finally said: “Fuck it, let’s go.” He told Ms. Gray to go with them. The group left in two vehicles. Mr. Tawiyaka and Mr. Pelletier rode together, and Ms. Gray and Ms. Starr rode in the second vehicle. There were other people with them, but Ms. Gray did not recall how many or who they were. She did not know where they were going. [ 18 ] They arrived at the Cote house and Ms. Starr went in, followed by Mr. Pelletier and Mr. Tawiyaka. Ms. Gray came in last. She stayed in the kitchen and could not see into the living room.

She could hear a woman screaming “[s]top it, you’re going to kill him” and she heard the sound of kicking. She saw Ms. Starr grab and hold a young girl. She also testified that a dog came up from the basement and that she was afraid of being attacked by it. She said a hand came through the door and got the dog, and someone shut the door again. [ 19 ] Ms. Gray said that, following the incident, they returned to the residence they had been at before. Once there, she called a cab to take her home to meet her daughter. It was a five- to ten-minute drive between each of these places. When she got home, Ms.

Gray found that her house had caught fire. She thought it was 4:00 a.m. or 5:00 a.m. The fire department had been called. She said that when she got home, the fire was almost out. She testified on cross-examination that the fire was “smoldering” and that the fire department remained on the scene for a long time after this because they did not want the children going inside until they had a chance to clear the house. She believed that it was just getting light around this time or shortly after. She said that her testimony of the times things happened were just rough estimates. [ 20 ] Mr.

Cote’s memory of the incident was not very clear because he had been using drugs that day. He said he had been sleeping on a mattress on the floor, and that he was subjected to a “licking” and “beat down”. He initially told police that Mr. Tawiyaka and Mr. Pelletier were his assailants.

At trial, he testified that he could not remember everything clearly from that evening, that he did not see who entered his house, and that he learned who the assailants were from information he got from his wife and daughter. [ 21 ] The parties filed an agreed statement of facts with records attached providing the timeline of the fire department’s involvement at Ms. Gray’s home. The records showed that the dispatch was at 4:26:18 a.m. There were multiple letter codes or abbreviations in the records coupled with time-stamps, the meanings which were unexplained and unexplored by the parties during trial.

The records included the following entries: Incident Begin Time: 06/Nov/2015 04:25:41 Incident End Time: 06/Nov/2015 05:09:52 [ 22 ] In a second agreed statement of facts, the parties agreed that the sun rose just before 8:00 a.m., that illumination from the sunrise began at 7:23 a.m., and the sky was overcast that morning. [ 23 ] Neither Mr. Pelletier nor Mr. Tawiyaka testified or called other evidence.

III. Decision of the trial judge [ 24 ] Mr. Pelletier and Mr. Tawiyaka were tried together, resulting in one unreported decision ( R v Tawiyaka (18 July 2017) Regina, CRM 141/2016 (Sask QB) [ Trial Decision ]). The trial judge reviewed the evidence of each of the witnesses. She noted that all elements of the offences but identity were conceded: [123] Counsel for both accused concede all but one element of the assault charges. They concede the time, place and date of the offence. They concede that a break and enter took place. They concede [Mr. Cote’s] house was a dwelling house.

And they concede force was applied to [Mr. Cote] without consent. Indeed, the evidence is quite clear that several individuals entered [Mr. Cote’s] house in the early morning hours of November 6, 2015 and severely assaulted him. The evidence is also quite clear that force was applied to [Ms. Cote] and [K.C.] without their consent. [124] The only question is whether Pelletier and Tawiyaka were involved. Counsel for the two accused challenge the credibility and reliability of the Crown witnesses who identified the two accused. [ 25 ] The trial judge then reviewed the evidence of Ms.

Cote as to the details of the assault and her identification of Mr. Pelletier as one of the assailants. She noted that Ms. Cote testified with great certainty that Mr. Pelletier was one of the assailants and that she had known him since 2010 and had been at meetings with Mr. Cote where Mr. Pelletier was present to discuss NS business. [ 26 ] The trial judge dealt directly with the various defence submissions that Ms. Cote’s evidence should be rejected: [138] Defence counsel urges me to reject [Ms. Cote’s] identification evidence because her testimony in court bordered on contempt.

They argue she was biased, untruthful, angry and unreliable. Her refusal to answer legitimate and proper questions put to her about who “Trevor” was shows she has something to hide and lacks credibility. [139] Moreover, they argue she had a motive to lie. Defence contends [Ms. Cote] was jealous of Pelletier. [Mr. Cote’s] diminished profile and position within the NS was to Pelletier’s gain since he took the position away from [Mr. Cote]. Second, [Ms. Cote’s] numerous references to “Trevor” in her text messaging - subsequently confirmed by [Ms. Desjarlais] to be Det. Cst.

Trevor Weir immediately following the incident suggests that Det. Cst. Weir may have exerted influence over [Ms. Cote] as to who to blame. [ 27 ] She concluded that, notwithstanding her near contemptuous behaviour, Ms. Cote was nevertheless a candid and forthright witness. She addressed the arguments of counsel in this respect: [140] [Ms. Cote] was vigorously cross-examined on her evidence. I found her responses to be candid, yet defensive and at times very emotional.

Her emotions ranged from a sense of upset and worry to open displays of disgust with Pelletier for what he did to her family, the tactics of defence counsel, the trial process generally, and even this Court. As the cross-examination proceeded, [Ms. Cote’s] evidence became increasingly punctuated with angry outbursts which necessitated numerous breaks simply to allow her to compose herself. [141] Towards the end of her cross-examination, [Ms.

Cote] reached the point where she refused to answer questions put to her by defence counsel and even refused to answer the questions after being instructed to do so by this Court. Defence counsel contends her refusal goes to her credibility. [142] In spite of the heated and defiant nature of her testimony, I found [Ms. Cote] to be a forthright and candid witness.

She was vigorously cross-examined but was unshaken from her earlier testimony. [143] She testified frankly about her previous drug lifestyle as she put it, they were druggies - losing custody of her son, initially lying to the police, knowledge of street gang life and even her inability to initially identify DK. [144] I found her evidence about why she initially lied to the police to be believable. She was familiar with the NS and street rules. She understood there could be consequences for being an NS “snitch”. Her familiarity with the NS, particularly [Mr.

Cote’s] former seniority within the organization, lends credibility to her beliefs. She was obviously concerned about possible reprisals, and displayed a level of apprehension on the witness stand. After all, she had both herself and her children to protect. [145] Her evidence was detailed and flowed logically and sequentially. She had known Pelletier for many years prior to the night in question and was familiar with his voice. She was fully engaged in the heat of the moment and had every opportunity to see him and witness what he did.

There was no evidence her vision was blocked. [146] While this Court does not condone the borderline contemptuous behaviour exhibited by [Ms. Cote] on the witness stand, the root of her anger was as much attributable to the immense stress she felt as a witness, amplified, no doubt, by the potential ramifications she could face by testifying against a street gang member. [147] The suggestion [Ms.

Cote] was untruthful and cannot be trusted because she was motivated by jealousy is purely speculative on the part of the defence, and there is no evidentiary factual foundation to support it. [ 28 ] The trial judge reviewed the evidence related to Ms. Cote’s identification of Mr. Tawiyaka. She rejected it as unreliable. She addressed the allegation that Cst. Trevor Weir, who had dealt with Ms. Cote, influenced her by suggesting – as part of a larger police effort to get key NS actors off the street – that Mr. Pelletier was responsible for the attack.

She described this argument as a red herring: [153] That said, I find this argument largely a red herring and the inference this Court is asked to draw unsustainable for three reasons, First, even if Det. Cst. Weir influenced [K.C.] and [Ms. Desjarlais], neither were able to identify either accused at trial. Second, [Ms. Gray’s] evidence on the identification of both accused is strong, and for the reasons which follow, there is no tangible basis to reject it because of the allegations about Det. Cst. Weir. Finally, as expressed above, I found [Ms. Cote] to be a forthright and candid witness.

She struck me as strong willed person with steely determination to have [Mr. Cote’s] attackers answer in a court of law for what they did. Moreover, given the potential ramifications for snitching, one wonders why she would identify so strongly with the police or even finger

someone on their say so. It simply does not make sense. [ 29 ] She accepted Ms. Cote’s identification of Mr. Pelletier and concluded: [154] In conclusion, I find [Ms. Cote] to be a credible witness and I accept her evidence concerning the identification of Pelletier as one of [Mr. Cote’s] assailants. I also accept her evidence that Pelletier assaulted [Mr. Cote], that she was grabbed by the other assailant, DK, and that DK also put an arm out to stop [K.C.] which caused [K.C.] to be shoved backwards into Starr. [ 30 ] The trial judge turned to the evidence of Ms. Gray.

She noted some concerns with her testimony: Ms. Gray was facing serious criminal charges unrelated to the matter before her, had a prior criminal record, and was an admitted former member of the NS. Accordingly, she instructed herself to approach Ms. Gray’s testimony with care and caution and to have regard to confirmatory evidence with respect to the truthfulness of her testimony. [ 31 ] The trial judge noted the absence of any plea deal on the unrelated charges in exchange for Ms.

Gray’s testimony and the fact that, although she had provided a statement to the police, it had no impact on her release pending trial because the Crown had opposed her bail in any event. [ 32 ] The trial judge observed Ms. Gray’s testimony about the assault was consistent with Ms. Cote’s as to the details of the sequence of events, time of day, number of people present, the rooms of the house the intruders had entered, the basement door, the large dog, and the specific persons who attacked Mr. Cote. [ 33 ] The trial judge also noted that Ms.

Gray’s evidence was consistent with that of K.C. with respect to the “two ‘girls’ in the kitchen” (at para 167), the handling of and circumstances around the dog, the sequence of entry by the intruders into the Cote house, and K.C. being grabbed and held by Ms. Starr. [ 34 ] The trial judge found that Ms. Gray definitively identified both Mr. Pelletier and Mr. Tawiyaka. She observed that Ms. Gray had known Mr. Pelletier previously and knew him by the same street name as Ms. Cote. She noted Ms. Gray was with Ms. Starr earlier that evening, that she had attended a house party where both Mr. Pelletier and Mr.

Tawiyaka were present, and that she had accompanied them to the Cote house later that night. Moreover, Ms. Gray had been in a personal relationship with Mr. Tawiyaka at the time Mr. Cote was attacked. [ 35 ] Thereafter, the trial judge reviewed the testimony of Ms. Gray about the time frame of events after the assaults. She noted Ms. Gray was extensively cross-examined about when she visited an acquaintance’s house after the assault, her trip home, and her dealings with the fire there. She also noted that Ms.

Gray testified the time frames were estimates only and not exact. [ 36 ] The trial judge dealt in detail with the assertions of Mr. Pelletier and Mr. Tawiyaka that Ms. Gray’s testimony of when the assault occurred and when she arrived home to deal with the fire was implausible when compared to the relatively exact times provide by telephone records, fire department records, and sky illumination times. Mr. Pelletier and Mr. Tawiyaka submitted that Ms. Gray could not be telling the truth about being at the Cote house during the assault in light of that other evidence. The trial judge noted Ms.

Gray’s testimony was inconsistent with that other evidence. [ 37 ] However, the trial judge acknowledged the frailties of time identification evidence and concluded Ms. Gray was only able to provide a rough estimate of the timeline and that her times were not exact. The trial judge determined the only reasonable conclusion about Ms. Gray’s evidence of when she arrived home was that she was mistaken, thereby resolving the issue of her credibility: [180] When I consider Exhibits D-5 and D-6, the only reasonable conclusion to be drawn is that Ms. Gray’s evidence about when she arrived home was mistaken.

Even though I find her evidence on this point to be mistaken, it does not shake my confidence in the truthfulness of her testimony about the events which took place earlier in the evening. When I consider her testimony as a whole, there is no obvious motive for her to fabricate a story about being at [Mr. Cote’s] house; if anything, it implicates her as an uncharged party to this offence. Nor, for that matter, is there an obvious motive for her to fabricate a bizarre story about returning home to find her house on fire. She did not and does not know [Ms. Cote] or [Mr. Cote].

If anything, concern about possible retaliation for testifying in court enhances the confidence I have in Ms. Gray’s truthfulness. [181] After careful consideration and analysis of the whole of Ms. Gray’s evidence, with particular attention to the consistencies between her evidence and the evidence of [K.C.] and [Ms. Cote], who she does not know, I am confident that while she may have been mistaken about the timeline of her movements after the assault took place, she was telling the truth about what transpired at [Mr. Cote’s] house.

I accept her evidence about the assaults and who committed the assaults. [ 38 ] The trial judge, with respect to the count under s. 348(1)(

b) for break and enter committing aggravated assault, concluded: [184] Having regard to the evidence which I accept, viewed as a whole, I have no hesitation concluding that both Pelletier and Tawiyaka assaulted [Mr. Cote] in the early morning hours of November 6, 2015, and that the assault was aggravating in nature and extent. The Crown has proven count No. 1 beyond a reasonable doubt. [ 39 ] The trial judge also concluded that Mr. Tawiyaka was guilty of two counts under s. 348(1)(

b) for break and enter committing assaults: [185] I am also satisfied beyond a reasonable doubt from the evidence before me, which I accept, that in grabbing [Ms. Cote] and pushing her away in the course of committing an assault upon [Mr. Cote], Tawiyaka assaulted [Ms. Cote]. He also assaulted [K.C.] when he put a hand out to stop her from reaching [Ms.

Cote] and thereby forced her backwards to Starr. [186] In any event, and in the alternative, there is ample evidence that by blocking [K.C.’s] path of escape to the refuge of her mother who had called out for [K.C.] to come to her, thereby driving [K.C.] into the clutches of Starr, Tawiyaka’s actions amount to abetting. He is guilty as a party to the assault on [K.C.] perpetrated by Starr.

[40] The trial judge then went on to consider whether Mr. Pelletier was guilty of the two counts of break and enter committingassaults as well. There was no evidence that he touched K.C. or Ms. Cote. The trial judge briefly reviewed evidence about the purpose forwhich Mr. Tawiyaka, Mr. Pelletier, and Ms. Starr were at the Cote house and the purpose of the actions of Ms. Starr and Mr. Tawiyaka inholding Ms. Cote and K.C. at bay. She concluded it was to allow Mr. Pelletier to assault Mr. Cote. She found that even if Mr. Pelletier didnot aid or abet the assaults on Ms.

Cote and K.C., he was guilty of them on the basis that he was involved in a common purpose orenterprise under s. 21(2) of the Criminal Code. She accordingly convicted Mr. Pelletier of those two counts as well. IV. The Issues [41] Mr. Pelletier raises three issues specific to his appeal. They can be summarized as follows: (

a) Did Ms. Cote’s reluctance or refusal to answer questions and the trial judge’s failure to properly deal with that matter result inan unfair trial and a miscarriage of justice? (

b) Did the trial judge misapprehend the evidence of Ms. Cote in finding her credible? (

c) Did the trial judge err in imposing the sentence or is the sentence demonstrably unfit? [42] I propose to deal with the sentence issue at the end of my analysis. [43] Mr. Pelletier and Mr. Tawiyaka also raise issues common to both appeals. These issues can be fairly framed as follows: (

a) Did the trial judge misapprehend the evidence of Ms. Gray in finding her credible? (

b) As a result of the misapprehension of evidence, are the verdicts unreasonable or unsupported by the evidence or is there amiscarriage of justice? V. Analysis [44] I turn first to Mr. Pelletier’s issues. A. Did Ms. Cote’s reluctance or refusal to answer questions and thetrial judge’s failure to properly deal with that matter result in an unfair trial and amiscarriage of justice? [45] Mr. Pelletier makes a number of submissions on this issue. First, he argues that his right to make full answer and defence unders. 7 of the Charter has been breached due to Ms.

Cote’s refusal to answer questions on three discrete matters and that the trial judge’sfailure to properly address that refusal undermined trial fairness. He also submits the trial judge only approached the refusal to answer interms of the credibility of Ms. Cote. He argues that, in the circumstances, the trial judge should have excluded or completely disregardedMs. Cote’s evidence. [46] As an initial observation, at trial, Mr. Pelletier’s counsel mused about a Charter argument regarding Ms. Cote’s refusal toanswer questions. No such argument was ever made.

Nor was an argument made that her evidence should be disregarded. There was noapplication for exclusion of Ms. Cote’s evidence. I am also satisfied after reviewing his counsel’s final submissions at trial that Mr.Pelletier proceeded solely on the basis that Ms. Cote’s refusal to answer certain questions and her demeanour during trial impacted hercredibility and the reliability of her evidence. Given this background, the Charter argument is completely new in this Court and was notbefore the trial judge. As this Court has stated in the past, completely new arguments will not usually be entertained on appeal.

I decline todeal with the s. 7 Charter argument. [47] That said, Mr. Pelletier’s counsel did indicate during the trial that Ms. Cote’s refusal to answer questions impacted trial fairnessbecause of the inability of counsel to explore certain defence theories, especially in regard to the issue of the identity of “Uncle Trevor”.Counsel, in her final submissions, made no mention that trial fairness was impacted as a result of that inability. However, because therewas at least a mention of this issue at trial and because the parties have fully argued the issue before us, I am prepared to address therefusal of Ms.

Cote to answer certain questions, her demeanour, and the trial judge’s response to that as a question of trial fairness going towhether there has been a miscarriage of justice. I turn first to the germane law. [48] A conviction entered after an unfair trial is, in general, a miscarriage of justice (R v Fanjoy, (SCC), [1985] 2SCR 233; and R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 (WL) (Ont CA) at para 92. See also, R v Bialski,2018 SKCA 71 at para 49). [49] The lenses through which this issue must be examined in this case are Mr.

Pelletier’s right to make full answer and defence, hisright to cross-examine, and the inherent power of the trial judge to manage the trial. The right to make full answer and defence is aninviolable principle of our law and is a given. It needs no further explication. [50] The right of an accused to cross-examine witnesses for the Crown without significant and unwarranted constraint is an essentialcomponent of the right to make full answer and defence (see: R v Lyttle, 2004 SCC 5 at para 41, [2004] 1 SCR 193 [Lyttle]).

However,that right is not unlimited, as was stated in Lyttle: [44] The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused. Counsel arebound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from

putting questions whose prejudicial effect outweighs their probative value. See R. v. Meddoui, (SCC), [1991] 3 S.C.R.320; R. v. Logiacco (1984), (ON CA), 11 C.C.C. (3d) 374 (Ont. C.A.); R. v. McLaughlin (1974), (ONCA), 15 C.C.C. (2d) 562 (Ont. C.A.); Osolin, supra. See also: R v R.V., 2019 SCC 41 at para 112, 436 DLR (4th) 265. [51] A trial judge has a general power and authority to manage a trial.

In R v Jordan, 2016 SCC 27 at para 139, [2016] 1 SCR 631,the majority wrote: “Trial judges should make reasonable efforts to control and manage the conduct of trials.” A trial judge is also entitledto manage the trial and control the procedure to ensure that the trial is effective, efficient, and fair to both sides (R v Sparvier, 2006 SKCA139 at para 22, [2007] 3 WWR 445, quoting R v Snow (2004), (ON CA), 190 CCC (3d) 317 (Ont CA). See also, R vA.C.Z., 2019 ONCA 69 at para 4). [52] Before us, Mr. Pelletier focused his arguments about the refusal of Ms.

Cote to answer questions on three subject areas andsubmitted he was unable to explore those areas: Ms. Cote’s counselling sessions, her efforts to regain custody of her son, and the identityof “Uncle Trevor”. Remarkably, neither of the first two subject areas were actually advanced in his counsel’s final submissions to the trialjudge as areas that he was prevented from exploring because of Ms. Cote’s refusal to answer questions. In short, at trial there was nocomplaint that there was, in respect of these two areas, any prejudice to Mr.

Pelletier’s right to make full answer and defence.Nevertheless, I will briefly address these two areas and will later return to them in the analysis of Ms. Cote’s demeanour. [53] The line of questions about counselling concerned whether Ms. Cote had developed honestly-held but false or embellishedmemories of the crime as a result of counselling (confabulation). In my view, this line of questioning was a red herring at trial andcontinues to be a red herring. At trial, there was no serious dispute about the details of what took place during the assault. The onlyelement of the offence in dispute was identity. Ms.

Cote had identified Mr. Pelletier to the police by name and definitively picked him outof a photo lineup hours after the assault – long before she ever had a chance to meet with her counsellor to discuss the incident.Cross-examination for the purpose of establishing confabulation about the details of the assault was therefore irrelevant to the only realissue in play: identity. [54] The second subject area, regaining custody of her son, was directed to the defence theory that Ms. Cote had colluded with thepolice to falsely identify Mr. Pelletier because she wanted police help for that matter.

That theory had apparently been developed on thefly by Mr. Pelletier after Ms. Cote disclosed during testimony that she that had a son, had given up custody of him to her mother, and wastrying to get him back. [55] While counsel cannot be faulted for trying to establish an evidential foundation for the collusion theory through cross-examination of Ms. Cote, there was not an iota of other evidence to suggest that the police had any involvement with the matter or thatthere was a causal connection between her identification of Mr. Pelletier and her efforts to regain her son. In fact, Ms.

Cote strongly deniedthat anyone was helping her with the matter or indeed that anyone had suggested the identification of Mr. Pelletier to her. This aspect ofthe defence theory, in retrospect, had no air of reality and required the trial judge to indulge in pure speculation (R v Cinous, 2002 SCC 29at para 50, [2002] 2 SCR 3). [56] On the basis of the foregoing and in view of the position Mr.

Pelletier took during final submissions in respect of those twoareas, I am satisfied that his right to make full answer and defence was not impaired by any inability to obtain answers to questions onthose subjects. [57] The third subject area, the identity of “Uncle Trevor”, was also related to the defence theory that Ms. Cote had colluded withthe police to identify Mr. Pelletier. Unlike the other two areas, it formed a part of his counsel’s final submissions. At the end of cross-examination on this area, and after some difficult interactions between Mr. Pelletier’s counsel and Ms.

Cote, the trial judge made her oneand only ruling with respect to Ms. Cote’s refusal to answer a question. I will return to how the failure of Ms. Cote to provide an answeraffected Mr. Pelletier’s ability to make full answer and defence later but turn now to the issue of Ms. Cote’s poor demeanour. Anexamination of this issue will also shed light on the effect of the refusal to answer the “Uncle Trevor” question on the right to full answerand defence and the effect of the trial judge’s management of the trial. [58] Mr. Pelletier submits there were no legitimate reasons for Ms.

Cote’s unresponsiveness, poor demeanour, and nearcontemptuous behaviour. He points out that in testifying, she apparently did not fear reprisals, was not embarrassed, and was not inemotional distress. Mr. Pelletier observes that Ms. Cote did not avail herself of the witness protection program and testified she was notafraid. [59] I am satisfied that there is no merit to any of these arguments. Looking at the proceedings as a whole, Ms. Cote was underconsiderable stress during her testimony and especially during cross-examination. I take the fact she testified and appeared defiant at timestoward Mr.

Pelletier to merely reflect that she was not deterred from testifying by fear or intimidation. However, a sometimes-defiantattitude does not mean fear and intimidation were not affecting her. Indeed, she testified that it was “hard to be here” and to testify. Thiswas acknowledged by the trial judge who found that Ms. Cote understood the consequences of being a “snitch”. [60] Mr. Pelletier submits that the cross-examination, while “vigorous”, was not abusive and, in any event, the trial judge took stepsto alleviate Ms. Cote’s emotional discomfort during questioning.

A review of the record as a whole discloses that the cross-examination ofMs. Cote by Mr. Pelletier’s counsel in the three subject areas proffered before us was problematic and pushed the limits of the term“vigorous”. [61] While counsel cannot be faulted for trying to discredit a witness who had provided cogent evidence of identification of herclient, seen as a whole, the cross-examination in the three subject areas was ineffective in eliciting relevant facts and achieving the goal ofdiscrediting the identification evidence. For the most part, the cross-examination heightened the palpable anxiety of Ms.

Cote whiletestifying and contributed to, if not goaded her into, near contemptuous behaviour on the witness stand. An examination of how thisoccurred is necessary to address the argument that Ms. Cote’s behaviour and the response of the trial judge to that behaviour compromisedtrial fairness. I begin with an examination of the record.

[ 62 ] Early, during a break in Ms. Cote’s otherwise uneventful examination-in-chief, counsel for Mr. Pelletier challenged Ms. Cote’s fitness to testify and sought to have her testimony be put in abeyance. The challenge came immediately after Ms. Cote had definitively identified Mr. Pelletier as an assailant. The transcript suggests Ms. Cote’s demeanour during her examination-in-chief had been reasonably normal. There was no sign she had refused to answer questions. [ 63 ] Counsel for Mr. Pelletier rose to question the capacity of Ms.

Cote to testify and boldly asserted her behaviour on the witness stand was contemptuous: Yes, My Lady, that’s the first time I’m making this kind of a -- a remark in the midst of a witness’s testimony. We have observed a number of symptoms on [Ms. Cote] this morning, and those symptoms are consistent with being under the influence of drugs. So facially, we may have an issue of contempt of court here this morning. It is a contempt of court to show up under the influence of drugs or other similar substances that alter one’s proper judgment and thought process.

Obviously, this is an issue I would raise in argument in addressing reliability and credibility of the witness. Therefore, as a matter of fairness, I think I want to raise with Your Ladyship whether she should be given an opportunity to address this at this point. There could be many reasons why she is exhibiting these symptoms that are completely innocuous. There could be a doctor’s note attesting to medically-supervised withdrawal. There could be a medical note attesting to a number of things, but I want to be very up front [ sic ] about it.

I don’t want to be confronted at the time of argument that I should have put this to her, and I should have given her an opportunity to address whether this morning she’s under the influence of drugs or not, and whether she is detoxing or not. … And I’m raising the issue that this could be potentially contempt of court, and that is something we need to deal with, is --with -- with right away, whether -- I guess, I’m asking for a ruling from Your Ladyship that -- first we need to get an answer whether she’s under the influence.

If that answer is yes, I would be asking Your Ladyship for a ruling whether that is contempt of court to show up under the influence of drugs or not. That is how I put it very precisely. … [ 64 ] Crown counsel, with some apparent scepticism, responded by asking rhetorically whether the trial judge had noticed any concerning behaviour, whether the witness had been able to take the stand, and whether she had been able to respond to questions. He commented that all that was before the court was defence counsel saying the witness was under the influence of drugs. [ 65 ] Counsel for Mr.

Tawiyaka weighed in, agreeing that the witness was exhibiting some “weird behaviours” and questioning whether that would be from nervousness or something else. She suggested questioning the witness. [ 66 ] Counsel for Mr. Pelletier reiterated her request for a ruling whether it was contempt to show up to court under the influence of drugs and whether it was appropriate to continue the examination-in-chief. [ 67 ] After discussion with counsel, the trial judge decided to speak to Ms. Cote about the issue when her examination continued. The trial judge addressed Ms.

Cote, noting that during the break counsel had raised certain questions with her about Ms. Cote’s behaviour and that she, as well, had noticed some physical mannerisms and facial expressions. She asked Ms. Cote about her ability to testify. [ 68 ] Ms. Cote advised that any issues in that respect were not due to lack of sobriety. She said that she had buried her spouse the week before. She indicated she had “other stuff going on” and she had anxiety problems and had struggled to breathe. [ 69 ] She also advised that she had medication for her anxiety and that she was on it. Ms.

Cote indicated that, in addition to it being hard to speak because of the loss of her spouse, her house had also been trashed. She also indicated that “she”, evidently referring to Mr. Pelletier’s counsel, was “eyeballing” her and smirking. Ms. Cote indicated she was struggling. During this exchange with the trial judge, Ms. Cote became upset and was given time to compose herself. After addressing counsel’s challenge that Ms. Cote’s behaviour was contemptuous, the trial judge concluded: THE COURT: All right. I am satisfied, based on primarily the fact that Ms.

Cote was able to reflect on the questions put to her by the Crown, and provide a reasonably articulate answer throughout the course of the morning, that there is nothing that impairs her capacity to - - to be a witness in these proceedings today. Okay? I thank you for raising it though, but we’ll leave it at that, unless something further happens this afternoon. [ 70 ] This intervention in the examination-in-chief by Mr. Pelletier’s counsel set the stage for further difficulties during Ms. Cote’s cross-examination and, in retrospect, coloured that cross-examination. It was apparent early on, at least from Ms.

Cote’s view, that she was being challenged on a personal level by Mr. Pelletier’s counsel. That said, in fairness to Mr. Pelletier’s counsel, she had begun the cross- examination noting that Ms. Cote was in a difficult emotional place and advising her that she was just doing her job in cross-examining. [ 71 ] Counsel then spent considerable time establishing that Ms. Cote had been a drug addict in the past. She delved into Ms. Cote’s sources of income between 2013 and the date of trial and referred to K.C. as a source of income for Ms. Cote while she was an addict. Ms.

Cote took umbrage at what she perceived to be a reference to using her child as a “source of income” or just a paycheque, telling Mr. Pelletier’s counsel she was out of line and “low” for asking those questions. [ 72 ] Counsel pressed on and underlined the term “source of income”, at which point the trial judge intervened in what appears from the transcript to have been intense exchanges between Ms. Cote and counsel. Crown counsel rose and suggested Mr. Pelletier’s counsel was getting confrontational and that counsel and the witness were both yelling. Mr.

Pelletier’s counsel denied being confrontational and yelling. [ 73 ] Undaunted, Mr. Pelletier’s counsel then questioned whether Ms. Cote had received child tax credit payments from Revenue Canada which she had spent on drugs. Ms. Cote admitted that she did. At that point, Ms. Cote remarked that counsel was “doing it deliberately” and “she sees it’s getting a rise out of me”, which I infer to mean that Ms. Cote was saying counsel was deliberately continuing that line of questioning to elicit her anger. The trial judge attempted to calm Ms. Cote and advised her to take a deep breath.

She reminded Ms. Cote that cross-examination was not pleasant. The trial judge then asked Ms. Cote to just answer the questions and not “take on” counsel. Ms. Cote mentioned again the smirk on counsel’s face. [ 74 ] As questioning continued, Ms. Cote mentioned that she had turned over custody of her son to her mother, that she had left her old lifestyle, and was in the process of getting her son back. This revelation was to become the subject matter of later intense friction between Mr. Pelletier’s counsel and Ms. Cote. [ 75 ] After an interlude where counsel asked questions about Ms.

Cote’s statement to the police, counsel turned to questions about whether Ms. Cote had seen any gang tattoos on Mr. Pelletier. In answering the tattoo questions, Ms. Cote stated that she had seen his tattoos when he had his shirt off in the summertime and that they were the same as Mr. Cote’s tattoos. This line of questioning also deteriorated, becoming combative with Ms. Cote believing the tenor of counsel’s questions intimated a romantic or sexual interest by Ms. Cote in Mr. Pelletier. Ms. Cote sarcastically remarked that it was not like she was “looking for hickies”.

Counsel countered by asking whether she actually checked him for hickies or whether she was being “ironic”. At that point, Ms. Cote responded that she was done answering questions about that topic and alleged counsel was pressing the topic to elicit her anger. [ 76 ] The trial judge again intervened and suggested to Mr. Pelletier’s counsel that she change the way she asked her question because Ms. Cote might not understand what she meant. Counsel resumed and simply asked whether Mr. Pelletier had a gang tattoo on his back. Ms. Cote gave a straightforward answer: “No.” Ms.

Cote then asked for a break so she could take her pills. [ 77 ] During the break, submissions were made by counsel regarding the extent of questioning of Ms. Cote’s counselling history. Counsel advised they were not making an O’Connor application for counselling records. Mr. Pelletier’s counsel indicated that Ms. Cote’s efforts to regain custody of her child were relevant and she wanted to probe whether part of the reason Ms. Cote was counselling was for that reason. Counsel noted that she wished to “explore to the full gory extent [of] that issue, unfortunately”. She acknowledged that it would upset Ms. Cote.

Counsel stated that the subject of Ms. Cote’s son was connected to her motivation for lying. The trial judge ruled counsel could question Ms. Cote about whether her motivation for going to the police was connected to obtaining custody of her son. [ 78 ] After addressing aspects of the police interview and her statement with Ms. Cote, counsel for Mr. Pelletier began to ask why Ms. Cote did not have custody of her son. Ms. Cote immediately questioned the relevance of this line of questioning. The trial judge explained to Ms.

Cote that the line of questioning was related to discussions with counsel while she was absent from the courtroom. [ 79 ] Counsel questioned as follows: Q So you don’t have custody of your biological son? A No. Q Okay. When did you lose custody? A I didn’t lose. I willingly signed him over to my mother because I wasn’t in a position to be a mother. Q Okay. What was wrong with you? A Oh, my God. I was an addict, rock-bottom junkie. I already told you that. Q And, now, you want your son back? A Wanted? I always wanted my son. Q Okay.

A I was never in a position to have him, so can you, please, be a little careful how you choose your words because it is a very touchy subject -- Q Okay. A -- very. Q You want to take back the voluntary signing-over of your son to your mother? A Do you know what? I did what was best for my son at the time, instead of allowing him to go into a foster home and into a system that would have let him down anyways. So, instead, I signed him to my mother, yes, I did. [ 80 ] When asked whether she had applied to an agency to get her son back, Ms. Cote challenged the relevance of the question. She refused to answer.

At that point, Mr. Pelletier’s counsel responded that she was in contempt of court. The trial judge then intervened and assisted counsel, suggesting she rephrase the question. The trial judge told Ms. Cote that counsel had broad scope to ask questions because of an earlier ruling and directed Ms. Cote to answer the question. Ms. Cote still refused, noting counsel had “an ugly smirk on her face”. The trial judge then suggested counsel move on to another line of questions for the moment.

Lost in all of this was the discrete question (i.e., “did you apply to any kind of agency to get the custody papers back to you?”). [ 81 ] Counsel then moved on to questions about Ms. Cote’s anger with Mr. Pelletier. Ms. Cote explained that she was angry at Mr. Pelletier because he had traumatized K.C. and that, as a result, she had it out for him. She said she would have made it known that she wanted street justice against Mr. Pelletier because of what he had done to her daughter. Ms.

Cote said, in answer to the question of whether she would use violence towards people she was angry with, that she would not do so but when it came to her kids, if they were traumatized, she would “go to war”. [ 82 ] Counsel immediately switched focus, with a series of questions about whether “she” (counsel) was safe from Ms. Cote if she cross-examined K.C. The following exchanges took place: Q -- should I be worried after I cross-examine your daughter? A You want to be smart about it and smirk around? You think it’s funny? My daughter is traumatized, and you sit there and smirk with an ugly look on your face.

Q I just want to know -- A No.

Q -- if I should ask -- A You think -- Q -- for protection. A -- it’s funny. I had every right to be as angry as I was. And I had every right to want it out for him, for the -- my daughter. Who was going to protect her because she felt her own mom and dad couldn’t? Q Ms. Cote -- A So, yes, do you know what, Defence, I wanted him and I wanted him bad. Q -- and after I cross-examine -- A So, now, you -- Q -- your daughter -- A -- want to be smart, and do you have to worry? You’re not smart, you’re not funny. You’re sick. Q -- okay. After I cross-examine your daughter, should I worry for my safety?

A Do what you want. You take that as you want. Q Are you threatening me? A You don’t want -- do you know what? See what I mean? You’re sick. You’re sick. You’re sick. Yeah, I had every right to want it out for him. And I had every right to want to hurt him. He hurt my child. You can do whatever you want to me. [Mr. Cote] and I said from the very, very beginning, and I said it time and time again in my statement, [Mr. Cote] and I have done our fair share of shady shit on those streets. We’ve robbed people, and we’ve jacked people, and we’ve hurt people, but never kids.

And I wanted him because my kid didn’t deserve that. And, now, you want to sit here and make sick jokes. Oh, do I have to worry? Q No, I’m not -- A You think you’re -- Q -- I’m not joking. A -- funny and you’re not. Q I’m not joking. A My daughter cried. My daughter -- did you know, at 11 years old, tried to kill herself when we left. She tried to kill herself. And she hated me because I didn’t stop you. You think it’s funny? You sit there with an ugly smirk on your face.

Why don’t you switch places with me for one day and try to wipe those tears because in a child’s eyes their mom knows every – their mom can fix everything. And I couldn’t take that pain away. I couldn’t. At 11 years old, to watch her try and cut herself and go to school and she wanted to die. Are you kidding me? I wouldn’t wish that -- do you know what? I wouldn’t even wish that on you, I wouldn’t. And you -- you make me sick because you sit there and you smirk like it’s a joke. And it’s not because you get to go home and live your perfect little life. You just defend these people.

Do you have any idea what a day in their lives is like? No, you don’t. You sit up there with an ugly smirk. Do you -- who -- do you have the words to come from my daughter? Does he? No. So maybe wipe the smirk off your face because it’s more than just a winning case for you. It’s my daughter’s life. She trusted [Ms. Starr], in a position of trust, her auntie. Whether you think it’s family or not. When you live on the streets, that is family. And my husband took [Mr. Pelletier] as family. And, [Mr. Pelletier], you know it.

And my daughter’s trust was betrayed, and you sit there, and you smirk, and you make me sick. You make me sick, to make comments. Do I need to worry? You’re sick. Q Ms. Cote -- THE COURT: Okay. Q [COUNSEL FOR MR. PELLETIER]: -- do I need to worry? A No. THE COURT: Okay. A I’m done. I want out of here. Discussion THE COURT: Yeah -- no. We’re going to take a break here -- A I want -- THE COURT: -- okay? A -- out of here. THE COURT: That’s enough of that line of questioning. Ms. Cote -- A No. THE COURT: -- we’re not done for the day, Ms. Cote. A You’re fucked, man. You know you did this all, [Mr. Pelletier].

THE COURT: Ms. Cote -- A You’re fucked, man. THE COURT: -- if you could just go see if your witness is going to come back for the rest of the day here? [COUNSEL FOR THE CROWN]: We have one of the officers who may be -- THE COURT: Okay.

[COUNSEL FOR THE CROWN]: -- attempting to -- THE COURT: Okay. [COUNSEL FOR THE CROWN]: -- calm her down. THE COURT: Well, let’s – [counsel for the Crown], find out what’s going on, find out whether or not she’s going to be returning to the courtroom. Tell her that she has to, okay? We’ll take a short break. [COUNSEL FOR MR. PELLETIER]: Thank you. THE COURT: Okay. THE COURT CLERK: All rise. This court stands adjourned. The foregoing line of questions apparently culminated in Ms.

Cote abruptly leaving the courtroom. [ 83 ] After adjournment the following exchange took place between the trial judge, counsel for the Crown, and counsel for Mr. Pelletier: THE COURT: Okay. I am going to give the witness some instruction, just to answer the question, not editorialize, and just to -- to the extent possible, just give a yes or no answer. She understands that, does she? [COUNSEL FOR THE CROWN]: I believe so, My Lady. THE COURT: M-hm. [COUNSEL FOR THE CROWN]: I don’t know for -- THE COURT: Okay. [COUNSEL FOR THE CROWN]: -- sure. THE COURT: Well, I’ll just -- [COUNSEL FOR MR.

PELLETIER]: I think that would be -- THE COURT: -- perhaps – [COUNSEL FOR MR. PELLETIER]: -- terrific. THE COURT: -- remind her of that. With regard to your question -- and I know where you were going with it, but if you were looking for a contempt ruling, I wouldn’t -- just so you know, I mean, I think she’s entitled, as a matter of fairness, to consult counsel, and so there would be a longer process involving that. And I would give her the opportunity to consult counsel, so I’m not sure where you’re going with all of that. [COUNSEL FOR MR. PELLETIER]: I -- well, it rather depends on what I can do with it.

THE COURT: M-hm. [COUNSEL FOR MR. PELLETIER]: I can certainly put in my argument that she declined to answer the question, which will support my argument, just as much as an answer that she would give. THE COURT: Okay. Fair enough. Okay. Okay, let’s -- [COUNSEL FOR THE CROWN]: I’ll go and get -- THE COURT: -- let’s get -- [COUNSEL FOR THE CROWN]: -- the witness. THE COURT: -- this witness. [COUNSEL FOR MR. PELLETIER]: I’ll -- I’ll try to ask a couple of other questions from just a little bit different angle, which will yes -- will be yes and no questions.

THE COURT: Again, I don’t want to interfere with your cross-examination, but -- [COUNSEL FOR MR. PELLETIER]: No. But that -- THE COURT: -- obviously -- [COUNSEL FOR MR. PELLETIER]: -- will be yes -- THE COURT: -- questions -- [COUNSEL FOR MR. PELLETIER]: -- and no questions. THE COURT: -- designed to elicit a reaction as much as an answer -- [COUNSEL FOR MR. PELLETIER]: But I have some yes and no questions for her - - THE COURT: M-hm. [COUNSEL FOR MR. PELLETIER]: -- that would be helpful -- THE COURT: Okay. [COUNSEL FOR MR. PELLETIER]: -- if we could just keep her to yes and no. Oh, me? [ 84 ] When Ms.

Cote returned, she was somewhat calmer. The trial judge provided some instruction to her regarding her testimony: THE COURT: Okay, Ms. Cote, do you feel a little bit better. A No. I just want to be done with it -- THE COURT: Well, I think -- A -- please.

THE COURT: -- I understand. Let me just say I understand. Let me just say, again, this is not -- I’m sure cross-examination is not a pleasant process, nor being in court. But you’re required to ask [ sic ] legitimate and proper questions put to you by defence counsel. If the question is not appropriate, it’s up to Crown counsel to object to it. Okay? And so they’re monitoring the questions. If they think there’s an objection, they’ll make the objection. And sometimes, quite frankly, Ms. Cote, you know, all that’s required is a yes or no answer.

A Well -- THE COURT: Well, all -- all that’s required sometimes is just a very short answer. And adding and editorializing aren’t necessary in each and every case. Okay? All right. [Counsel for Mr. Pelletier], would you care to continue? [ 85 ] Counsel then asked a variety of questions to which Ms. Cote was responsive. Eventually, Mr. Pelletier’s counsel came back to the subject matter of Ms. Cote’s son: Q There was a question that I was trying to ask before the recess. And that was the question that you refused to answer. A And I won’t answer it still, about my son.

Put me in contempt of Court, do what you need to do. I will not answer it. It has nothing to do with my son. Q M-hm. A [K.C.], I will answer. [K.C.] was there, [K.C.] was affected. You have no right to ask about anything about my son. Like you said, how I had not have mentioned it, you wouldn’t have even known. So I’m not going to give you something to feed off of. I apologize. Put me in contempt. I don’t care. THE COURT: She’s not -- A I won’t answer it. THE COURT: -- where -- where do you want to go with this counsel? [COUNSEL FOR MR.

PELLETIER]: Let’s finish the cross-examination, and then we get back to what to do with the -- THE COURT: Okay. [COUNSEL FOR MR. PELLETIER]: -- contempt. THE COURT: All right. A So be it. [ 86 ] Counsel then quickly moved to ask who “Uncle Trevor” was. Ms. Cote refused to disclose his identity. Ms. Cote was cautioned by the trial judge several times that she was not entitled to refuse to answer proper questions. Counsel then explicitly asked if “Uncle Trevor” was Cst. Weir. Ms. Cote refused to answer suggesting that she was prepared to be held in contempt. The trial judge then asked if it was Cst.

Weir as well and Ms. Cote refused. That line of questioning ended with the court noting for the record that she had refused to answer the question. [ 87 ] Immediately thereafter, counsel asked Ms. Cote the direct question of whether Cst. Weir told her it was Mr. Pelletier who attacked them. She emphatically denied it. Counsel returned to the issue of Ms. Cote’s son and asked directly if anyone had ever told her that cooperating with the police would be helpful in getting back her son. Ms. Cote became very combative with counsel at that point.

She responded that “Trevor” did not even know about her son and she did not need anyone to help her get her son back. Counsel ended her questioning. The last comment of Ms. Cote after this was “smirk again”. [ 88 ] Counsel for Mr. Pelletier then had the following exchanges with the trial judge regarding Ms. Cote’s refusal to answer these questions and Mr. Pelletier’s defence theory: [COUNSEL FOR MR. PELLETIER]: And the remaining question is, My Lady, for the record, the witness’s -- Ms. Cote’s refusal to answer certain questions closed off the avenue of exploring certain defence theories. It is contempt of court.

I do not know how Your Ladyship wishes to deal with this matter, but, for the record, I had questions and issues that I consider important for the defence that I could not explore because of her refusal to answer, especially in regards to the Uncle Trevor issue. … -- for the record, I have the context of these text messages and the timings of the text messages make it almost inevitable to come to a conclusion that Uncle Trevor who brings the sandwich is Detective Constable Trevor Weir. At this point, it’s speculation.

It’s very unlikely that in the midst of giving the testimonies, being at the police station, Constable Weir being there, there is another Uncle Trevor. So I -- THE COURT: Well -- [COUNSEL FOR MR. PELLETIER]: -- will explore this with -- THE COURT: Okay. [COUNSEL FOR MR. PELLETIER]: -- with Constable Weir, as well: Were you the one who brought the sandwiches? But if that is the case, then Ms. Cote brick-walled questions that were relevant. I don’t know how Your Ladyship wishes to deal with this content [ sic ] issue.

THE COURT: So that’s your supposition, is it’s the detective? [COUNSEL FOR MR. PELLETIER]: That in my -- my theory is that Uncle Trevor is Detective Constable Weir. … [COUNSEL FOR MR. PELLETIER]: -- it connects back to potential police misconduct, My Lady. I think the suggestion that it was my client who invaded the home came early at 7:55 in the morning from Detective Constable Weir. We will explore this further with other evidence -- evidence. Therefore, it was important that I get her answer on the record, which I did not.

I can address this in argument, but -- THE COURT: I’m going to have to -- [COUNSEL FOR MR. PELLETIER]: Your Ladyship has -- THE COURT: -- think about this one -- [COUNSEL FOR MR. PELLETIER]: -- to think. THE COURT: -- and give it some -- some consideration. Is Ms. Cote -- can -- could she be recalled? Is she around, so that we could -- we could bring her back, if needed? Only -- I’m going to emphasize that, if needed. [COUNSEL FOR THE CROWN]: As I understand it, My Lady, yeah, she’s in and around this area. THE COURT: Okay. “Uncle Trevor” was eventually identified as Cst. Weir by Ms. Desjarlais.

This was acknowledged by Mr. Pelletier and is not in dispute on this appeal. [ 89 ] Ms. Cote’s refusal to identify “Uncle Trevor” was the only specific refusal to answer questions mentioned by counsel in final submissions. Counsel for Mr. Pelletier dealt with the issue of Ms. Cote’s refusal and contempt as follows: And -- and there’s an interesting thing here. Ms. Cote -- Ms. Cote had become very agitated when I started digging into the identity of Uncle Trevor. And I request Your Ladyship to draw an inference from this.

She refused to answer those questions because those questions, if she answered them, would have undermined her credibility and would have shown her as a liar. Her refusal to answer this question was final in contempt of court. It was a very dramatic contempt by turning her back to Your Ladyship for several seconds while she was sitting in the witness box, and by leaving the witness box and the courtroom without Your Ladyship’s permission, shouting: Fuck this. I would also like to point out -- and I don’t know if Your Ladyship had a chance to observe this personally.

If not then obviously Your Ladyship will ignore this comment. But my friend referred to the fact that Ms. Cote was very upset and emotional. Well, she certainly was screaming and shouting a lot and made noises that one would describe as crying, except I paid very careful attention for several minutes. Not one drop of tear appeared on her face. Not one iota of dampness, not one Kleenex used. Maybe she cries that way. I would suggest she was putting up a pretty good show. … Now, the contempt of Court and preventing defence from fully exploring the Uncle Trevor issue is a serious prejudice to Mr.

Pelletier’s defence. It is a strong indication -- and, again, I’m asking Your Ladyship to draw this inference – that [Ms. Cote] had issues to hide around Detective Constable Trevor Weir. And that those things that she wanted to keep in the dark would have further undermined her already very weak credibility. [ 90 ] In final submissions, Mr. Pelletier’s counsel laid out the defence theory that Cst. Weir influenced the identification of Mr. Pelletier: Now, Constable Weir had ample time and opportunity to have off-the-record conversations with [Ms. Cote] before [Ms.

Cote’s] statement to the police started on the 6th of November, 2015 at 11:47 AM. Also from 4:40 -- 4:53 when the incident ended, to 11:47, there’s plenty of time to concoct stories. And I’ll come back to it. There is other reason to believe that there could have been motivation to concoct a story targeting Mr. Pelletier. Now, I won’t go as fall as alleging a -- a - - police misconduct. It could have been simply as innocent as a misspoken word, giving an idea to Ms. Cote. The bottom line is, we don’t have to go there.

Opportunity and suspicion around the fact that she had no idea who the attackers were, other than [Ms. Starr], is enough to raise reasonable doubt. [ 91 ] It is clear from looking at the transcript of counsel’s intervention in Ms. Cote’s examination-in-chief and the conduct of the cross-examination that Ms. Cote was antagonistic to defence counsel and perceived the cross-examination as deliberately provocative both in the way questions were asked and how certain subject matter was approached. The interaction with counsel from Ms. Cote’s perspective appeared to have become personal. This resulted in Ms.

Cote becoming very distraught with the questioning and a progressive increase in her reactivity and a concomitant deterioration in her demeanour. [ 92 ] After reading the cross-examination as a whole, Ms. Cote’s perception that the cross-examination had become personal was not far off the mark. The allegation that her behaviour was contempt of court was raised early and strongly by counsel in circumstances where it was apparent on the record that, despite any “weird behaviour”, Ms. Cote was capably answering the questions put to her.

The allegation of contempt was repeated several times in the cross-examination of Ms. Cote by counsel when difficulties arose. [ 93 ] There are repeated references by Ms. Cote to counsel “eyeballing” and smirking at her. In the delicate area of Ms. Cote’s efforts to regain custody of her son, the questions and comments of counsel were, in a kind

interpretation, poorly worded and appeared to be provocative. An example of this was the question, “[w]hat was wrong with [Ms. Cote]” to have “lost” her son, a question that had

nothing to do with whether Cst. Weir was helping her to regain custody. Moreover, counsel had, before asking questions in the subject area, telegraphed her manner of questioning Ms. Cote about her son, indicating to the court that she wanted to “explore to the full gory extent [of] that issue, unfortunately”. [ 94 ] That things had become personal was confirmed by the trial judge after counsel began a series of questions dealing with Ms. Cote’s anger with Mr. Pelletier and her initial desire for street justice. After Ms.

Cote stated that she eschewed violence but said she would “go to war” to protect her children, counsel asked Ms. Cote whether she (counsel) was safe from Ms. Cote if she were to cross-examine K.C. Ms. Cote took offence to the question, understanding it as an accusation and said it was “sick”. The exchanges between the two were very personal. Notably, Ms. Cote attempted to keep her testimony focused on her anger against Mr. Pelletier but counsel, despite this, asked more directly “are you threatening me?”, prompting a tirade from Ms.

Cote who eventually said she would not wish on counsel what she and K.C. had to endure. Still not content, and despite the evident absence of threatening words toward her, counsel asked about threats to her a third time. The trial judge finally said to counsel, “[t]hat’s enough of that line of questioning”. [ 95 ] That the use of the potential cross-examination of K.C. in this way by counsel, and the allegation of a personal threat to counsel was designed to be provocative is underlined by the admission of Mr.

Pelletier’s counsel to the court the next morning that K.C. was an inconsequential witness for the defence and that she had no questions for her save a marginal one relating to Ms. Starr. Counsel remarked that this had been her intention all along since before trial. [ 96 ] The trial judge astutely recognized that Ms. Cote was, at times, being provoked. At one point, she suggested counsel ask questions designed to elicit answers rather than reactions. Extended examination of Ms.

Cote’s life as a drug addict and questions intimating that she was using her children as a source of money to fuel her habit is a good example of such questions. Although counsel, as part of the right to make full answer and defence, had leeway to explore various areas, how detailed questions in these subject areas had anything to do with challenging identification or supporting any defence theory is not obvious. [ 97 ] While the behaviour of Ms. Cote cannot be condoned, the way in which questioning proceeded and the formulation of the questions played a determinative

part in distressing an already anxious witness further and in contributing substantially to Ms. Cote’s overall poor demeanour. In short, Ms. Cote’s poor demeanour, if not ignited by Mr. Pelletier’s tactics at trial, was stoked by them. In the result, Ms. Cote’s poor demeanour is understandable and loses much of the pejorative gloss put on it by Mr. Pelletier. [ 98 ] In light of the foregoing, I return now to the effects of Ms. Cote’s unresponsiveness about the identity of “Uncle Trevor”. Mr.

Pelletier submits the trial was unfair because that unresponsiveness had a serious negative effect on his ability to advance his defence. Counsel dealt with the issue of refusal to answer as it might have affected the defence in her final submissions: And -- and there’s an interesting thing here. Ms. Cote -- Ms. Cote had become very agitated when I started digging into the identity of Uncle Trevor. And I request Your Ladyship to draw an inference from this. She refused to answer those questions because those questions, if she answered them, would have undermined her credibility and would have shown her as a liar.

Her refusal to answer this question was final in contempt of court. It was a very dramatic contempt by turning her back to Your Ladyship for several seconds while she was sitting in the witness box, and by leaving the witness box and the courtroom without Your Ladyship’s permission, shouting: Fuck this. … Now, the contempt of Court and preventing defence from fully exploring the Uncle Trevor issue is a serious prejudice to Mr. Pelletier’s defence. It is a strong indication -- and, again, I’m asking Your Ladyship to draw this inference -- that [Ms. Cote] had issues to hide around Detective Constable Trevor Weir.

And that those things that she wanted to keep in the dark would have further undermined her already very weak credibility. … She did not care about the consequences of being found in contempt of Court. And I would submit, she had no respect for the Court, the process, or the gravity of what she’s doing, what she’s saying, and what effect the words she’s saying have. [ 99 ] It is notable from the foregoing that Ms. Cote’s refusal to answer and behaviour was characterized as both a contempt and as seriously undermining her credibility.

In final submissions, there was only a bald assertion that the defence was prejudiced. There was no explanation of what exactly the defence needed to learn from Ms. Cote that it did not already have at the close of the trial. Clearly counsel was trying to establish that “Uncle Trevor” was Cst. Weir in aid of the theory of collusion regarding identification. By the end of the trial, Ms. Desjarlais had identified “Uncle Trevor” as Cst. Weir. [ 100 ] Despite Ms. Cote’s unresponsiveness about the identity of “Uncle Trevor”, counsel nevertheless was able to explore in cross- examination the relationship between Ms.

Cote and Cst. Weir, and had no difficulty cross-examining on how often he contacted her and, more specifically, whether Cst. Weir suggested Mr. Pelletier was the assailant. When asked directly about possible collusion, Ms. Cote answered the question directly with a strong denial. Ultimately, Ms. Cote’s unresponsiveness about “Uncle Trevor” was neither here nor there in terms of the ability of Mr. Pelletier to advance his theory of collusion. [ 101 ] It was clear that, despite any refusal by Ms. Cote, Mr. Pelletier was able to proffer his theory of collusion and argue that Ms.

Cote’s identification evidence should be rejected. The trial judge’s

summary of his argument confirms that this argument was squarely in place: [139] … Second, [Ms. Cote’s] numerous references to “Trevor” in her text messaging - subsequently confirmed by [Ms. Desjarlais] to be Det. Cst. Trevor Weir - immediately following the incident suggests that Det. Cst. Weir may have exerted influence over [Ms. Cote] as to who to blame. In short, I can see no prejudice to Mr. Pelletier’s ability to make the argument of collusion. [ 102 ] Mr. Pelletier also argues the trial was unfair because the trial judge indulged Ms.

Cote’s objectionable conduct, thereby emboldening her to refuse to answer questions. He submits that the trial judge could have done more by providing more stern exhortations

to Ms. Cote to answer the questions and by taking necessary measures to restore the dignity of the court. I disagree. [103] While this Court will intervene where the trial judge fails to manage a trial such that the fairness of the trial is impaired, this isnot such a case. As noted above, a trial judge has a wide discretion in the exercise of the power to control trial proceedings [104] The trial judge was alive to the fact credibility was at stake. She rightly gave appropriate latitude to counsel to cross-examine Ms.Cote, who was one of two witnesses who identified Mr. Pelletier.

She was mindful that she was dealing with an anxious witness, yetappropriately exhorted and, at certain times, directed Ms. Cote to answer questions. I see no indication she inappropriately indulged Ms.Cote. [105] The trial judge appropriately managed the exchanges between Mr. Pelletier’s counsel and Ms. Cote in cross-examination. Sherecognized that some of the cross-examination, whether deliberately or unintentionally, was about getting an emotional reaction from Ms.Cote, and that exchanges between counsel and the witness had become intense and appeared to be driven by personal undercurrents.

Onthe whole of the record, I cannot say the trial judge exercised her discretion improperly to control trial proceedings. [106] She also appropriately dealt with the issue of contempt raised by Mr. Pelletier. Counsel asked several times for Ms. Cote to becited for contempt because of her reluctance or refusal to answer certain questions. The trial judge noted that if Ms. Cote were to be injeopardy of contempt, she would first need to be given a chance to consult counsel. [107] Mr. Pelletier’s counsel’s approach to this was to back off her request for a contempt ruling and suggest Ms.

Cote’s refusal wouldbe dealt with in her final submissions. Later, counsel reversed course and specifically asked the trial judge to address the contempt issue.She indicated that Ms. Cote’s refusal to answer foreclosed exploration of defence theories, especially in regard to the “Uncle Trevor”issue. Counsel invited the trial judge to call Ms. Cote back and to put questions to her and get her refusal on the record. The trial judge wasopen to that but mused that there was no point in recalling her.

Counsel agreed that not recalling her would not result in unfairness.Counsel said she would consider her position after hearing further witnesses. In the end, she did not ask for Ms. Cote to be recalled. [108] Apart from that initial request for a ruling of contempt described above, Mr. Pelletier did not ask for any remedy for failure torespond to questions. Although at one point his counsel indicated she was considering a stay application on the basis the trial was unfair,no such application was made. Mr. Pelletier was content to rely on Ms.

Cote’s refusal to answer questions and her demeanour for thepurpose of attacking credibility. That is how the matter was argued before the trial judge. Mr. Pelletier cannot be heard to complain nowthat the trial judge erred by focusing on that argument. [109] In conclusion, none of the issues raised by Mr. Pelletier – namely, Ms. Cote’s refusal to disclose who “Uncle Trevor” was, herdemeanour during cross-examination, or the approach of the trial judge, either separately or combined – prevented Mr.

Pelletier fromexercising his right to make full answer and defence to the charges. [110] I am satisfied, looking at the record as a whole, that the trial judge did nothing that made the trial unfair or impairedMr. Pelletier’s right to make full answer and defence. B. Did the trial judge misapprehend the evidence of Ms. Cote and err infinding her credible? [111] Mr. Pelletier submits the trial judge misapprehended the evidence foundational to her finding that Ms. Cote was credible andreliable and failed to give proper effect to the demeanour of Ms.

Cote in determining that her identification evidence was credible. [112] This issue rests in part on the reiteration of Ms. Cotes’s behaviour, demeanour, and her refusal to answer questions. To the extentit does, my analysis on the previous issue applies. [113] Mr. Pelletier argues the trial judge ignored that Ms. Cote failed to answer questions put to her and that there was a contradictionbetween Ms. Cote’s words and demeanour in court. He also argues the trial judge’s observations that Ms.

Cote was apprehensive andconcerned about reprisals when testifying is belied by the fact she refused to stay in witness protection or to testify from a soft room. Allof this, he submits, undercuts the trial judge’s assessment that Ms. Cote was a credible witness. [114] In addressing these arguments, I turn first to the law governing the various issues raised. Misapprehension of evidence wasexplained in Morrissey: [83] I will now address the effect of the trial judge’s misapprehension of the evidence.

Submissions premised on an allegedmisapprehension of evidence are commonplace in cases tried by a judge sitting without a jury. A misapprehension of the evidence mayrefer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give propereffect to evidence. … (Emphasis added) [115] In R v J.P., 2014 NSCA 29, 342 NSR (2d) 324, Beveridge J.A. wrote: [110] The judge misapprehended the evidence. But did it play an essential role in the decision to convict? Assessment of thecomplainant’s credibility was a key issue.

Misapprehension or mischaracterizing evidence in the course of resolving credibility during thepath to conviction can be fatal. [116] It is well established that a trial judge’s finding of credibility is a question of fact: R v R.P., 2012 SCC 22 at para 10, [2012] 1SCR 746. In R v Leroux, 2015 SKCA 48, 460 Sask R 1, this Court said: [29] … A trial judge’s findings of credibility are subject to appellate deference, largely because the trial judge has the opportunity tosee and hear the witnesses directly, which is said to be a formidable advantage: R v W.(R.), (SCC), [1992] 2 SCR 122. As

a finding of fact, a credibility assessment is not subject to appellate reversal unless it is the product of a palpable and overriding error:Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, and R v Gagnon, 2006 SCC 17, [2006] 1 SCR 621. … [117] R v Wadworth, 2009 ONCA 716 at para 66, 247 CCC (3d) 466, Watt J.A. described the assessment of credibility process inwhich judges engage as follows: [66] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject,often defying precise and complete verbalization.

At bottom, belief of one witness and disbelief of another, in general or on a specificissue, is an alloy of factors, not a purely intellectual exercise.

The unique position of trial judges to see and hear witnesses, and theinestimable advantage they enjoy in the result in assessing witnesses’ credibility and the reliability of their evidence, cannot besquandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions thateffuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events. (Emphasis added, citations omitted) [118] The law regarding the relevance of demeanour in assessing credibility is set out in R v R.D., 2016 ONCA 574, 342 CCC (3d) 236: [25] … Despite academic and judicial commentary suggesting demeanour evidence is unreliable, under Canadian jurisprudence itremains relevant to the assessment of a witness’s credibility: see, for example, R. v.

N.S., 2012 SCC 72, [2012] 3 S.C.R. 726; and [R vO.M., 2014 ONCA 503, 313 CCC (3d) 5], at para. 34. As long as a trial judge does not unduly rely on demeanour to make a credibilityfinding, the trial judge will not fall into error. … [119] Likewise, in R v TR, 2016 ABCA 355, the Court of Appeal said: [20] … In our view, the trial judge’s credibility finding is ent

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