ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
PROCEEDINGS AT TRIAL
BEFORE THE HONOURABLE JUSTICE XXXX
on. July XX, 20XX, at BRAMPTON, Ontario
N. Green, Counsel for the Crown
T. Pain, Counsel for Shane Sutton
THE COURT: Good morning. Good morning.
MR. PAIN: Good morning, Your Honour.
MS. GREEN: Good morning, Your Honour. For the record, it’s Green, initial N., G-R-E-E-N, appearing for the Provincial Crown today. We have one matter that’s scheduled in here. It’s the matter of Shane Sutton. And as I understand it, that matter is ready to proceed.
THE COURT: Right.
MR. PAIN: Yes, we are, Your Honour.
THE COURT: Very good.
MS. GREEN: So we….
MR. PAIN: It’s Pain, P-A-I-N, initial T., for Mr. Sutton and he’s in the front row.
THE COURT: Thanks very much.
…INTERRUPTION RE UNRELATED MATTERS
MS. GREEN: I believe we’re ready to proceed with the Sutton matter.
THE COURT: All right. Great. Thanks very much. Let’s go. Good morning.
MR. PAIN: Good morning. Mr. Sutton, Your Honour.
THE COURT: Thanks very much. Right. Can I see the info?
MS. GREEN: And, Your Honour, can I confirm that the assault with a weapon has been withdrawn at this point?
THE COURT: No. Oh, I’m sorry. Let me just check. No.
MS. GREEN : Okay. The Crown will not be proceeding on that charge, just with–we’ll only be proceeding with respect to the criminal harassment charge.
THE COURT: Alright. Thanks very much. Alright. Thanks. Let’s arraign him.
COURTROOM CLERK: Shane Sutton, you are charged on about the–you are charged–you are charged on or about, between the first day of June 2005, and the 30th day of June 2005, in the City of Mississauga, did knowing that Kate Sutton is harassed or being reckless as to whether Kate Sutton is harassed, did without lawful authority, repeatedly communicate directly or indirectly with Kate Sutton, thereby causing Kate Sutton to reasonably in all circumstances fear for her safety, contrary to Section 264(b) of the Criminal Code of Canada.
How does the Crown wish to elect?
MS. GREEN: We’re proceeding summarily. If I can just confirm the dates though? I believe Madam Clerk read out the dates with respect to the assault with a weapon and not with respect to criminal harassment.
COURTROOM CLERK: Oh.
MS. GREEN: The dates should be July 10th through August 9th, 2007.
COURTROOM CLERK: Yes.
THE COURT: Could I just see the information again?
MS. GREEN: Thank you.
THE COURT: Right. Well, if you could read it all again, please, Madam Clerk, then?
MS. GREEN: Sorry for interrupting.
COURTROOM CLERK: Shane Sutton, you are charged on or between the 10th day of July, 2007 and the 9th day of August, 2007 did knowing that Kate Sutton is harassed or being reckless as to whether Kate Sutton is harassed, did without lawful authority, repeatedly communicate directly or indirectly with Kate Sutton, thereby causing Kate Sutton to reasonably in all circumstances fear for her safety, contrary to Section 264(b) of the Criminal Code of Canada
The Crown elected summarily. Sir, on the count as read, how do you plead, guilty or not guilty?
SHANE SUTTON: Not guilty, Your Honour.
THE COURT: All right. Thanks. Have a seat.
MR. PAIN: Your Honour is it okay for Mr. Sutton to sit at counsel table, please?
THE COURT: Sure.
MR. PAIN: Thank you.
SHANE SUTTON: Thank you, Your Honour.
THE COURT: Any orders sought by Crown or defence?
MS. GREEN: Seeking an order excluding witnesses, please.
THE COURT: Thanks. All witnesses, other than the first witness for the Crown will leave the courtroom at this time. While outside, they will not discuss the matter amongst themselves or with any other person. That includes those persons who have already given their evidence.
MS. GREEN: Okay. The Crown’s first witness is Kate Sutton. If she could be paged?
COURTROOM CLERK: The lines are just busy, Ms. Green.
MS. GREEN: Perhaps, if I could just step outside briefly.
THE COURT: Sure. Please do.
KATHLEEN SUTTON: SWORN
EXAMINATION IN-CHIEF BY MS. GREEN:
Q. Kathleen, do you go by Kate?
A. Yes, I do.
Q. Okay. Is it okay if I call you that?
Q. Perfect. Good morning, Kate.
Q. I’m just going to start off with a few questions. How old are you?
A. I’m 40.
Q. What do you do for a living?
A. I work in a laboratory as a sample coordinator.
Q. Okay. How long have you held that job?
A. This particular position, I’ve been doing it for about three, four years, but I’ve worked at the company for 22 years.
Q. And I don’t want to know the specific address, but what city do you reside in?
Q. In Mississauga? Now, Kate, I’m going to take you back to last year, July 2007 through to August.
Q. And can you just tell us what was happening in your life at that point?
A. I had left our home with–with my three children
Q. Okay. I’m just going to stop your there.
Q. You’d left with your–you’d left your home?
Q. With–whose home was it?
A. It was–at that time, it was mine and my husband’s.
Q. Okay. And who is your husband?
A. Shane Sutton.
Q. Okay. And do you see him in the body of the court today?
A. Yes, I do.
Q. Can you just identify who that is?
A. Right there.
Q. Okay. For the record, point to the accused. How long have you been married to him?
A. At that time, we were married for 17 years, and a half years.
Q. Okay. How old are your three kids?
A. Do you want their ages now or…
A. …at the time?
Q. …let’s have them now.
A. Now, my oldest is 16.
A. The middle child is 13, and the youngest is 11.
Q. Okay. And what–what transpired to have you leave the home?
A. We had had a — a fight — previous — like I had come home from work. We had been going through some trouble, and he wanted to talk to me about our situation. So we had
gone into our bedroom and were talking, arguing, talking, fighting. We had–I had gotten things calmed down and I’d spoken–the kids had asked me earlier if we could go to Wal-Mart. So–so I–after things had calmed down, I took my younger two and ,we went to Wal-Mart and we were there for maybe about 20 minutes–no, about half an hour to an hour. And when we left Wal-Mart and we were walking out, I stopped, I saw a friend of mine, so I’d stopped and talked to her for a couple of minutes, and then we continued on to go to where I’d parked the van. And as we were walking, my ex-husband came up beside me out of nowhere and approached me and looked at me and he said, “Do you want to die?” And–and I just, like, I just, I mean, I–I was, it–it totally, it really scared me, the way that he said it because I could see by his face and by his eyes that he was serious. He was–he was really upset. And–and I just said, “Look, what are you talking about? And then he said, “You know what I mean. There’s no such as thing as”–you know. Or he said, “It doesn’t matter if it’s tomorrow, or the next day, or 10 years from now”, he goes, “You know what that means, like, you’re, you know, you’re not leaving”, or something like that…
Q. Okay, now…
Q. …I’m just going to stop you there.
Q. You referred to this as your ex-husband?
A. Well, I’m sorry, at the time he was my husband.
Q. So still…
Q. …Mr. Sutton?
A. Still Mr. Sutton.
Q. Do you remember about what date this was?
A. This was July the 6th, it was…
A. …a Friday.
Q. Which year is that?
Q. Okay. Okay.
A. So I–I–I just–I–I don’t–I don’t really remember what–what I said to him, to that. I continued walking as he was saying this. And then–I had moved out of our bedroom about two weeks before that. I was sleeping with my–in my daughter’s room. And then as we approached the van, he said, “Oh, and another thing. You’re moving back into the room tonight.” And I said, “No, I’m not.” And he then he’s like, “Oh, yeah, we’ll see about that.” So I thought–I–at this point I was very upset. And I got in the van and my kids
asked me what was wrong and. I said, You know what? I said, “I think we’re going to go to grandma’s tonight. I don’t think we’re going to stay.” So I got–so I got home–and so he followed behind me as I was driving. I mean, the distance from Wal-Mart to our house is maybe a five minute drive. He was driving, like, right up against my bumper. He was sort of driving erratically, like, behind me, so when I–when I got–when I got into the–instead of parking in the driveway, I parked on the road because I didn’t want him to block me in. So I walked–so I walked into the house, the kids went upstairs and started packing their bags. And he’s like, “Why did you park–why did you park on the road?” And I said, “Because I’m not going to stay.” And he’s like, “Well, where are you going?” And I said, “It doesn’t matter–I’m–I’m leaving.” And he’s like, “No, you’re not.” And I said, “Yeah, I-I have, you know, I–I have to get out.” So we argued about that, and then at that point, I picked up the phone and I dialled 9-1-1. He grabbed the phone out of my hand and he hung it up. So within, I don’t know, like, several seconds later, the phone rang and it was the 9-1-1 operator. So she–and so she asked me what the problem was, and I explained what happened. I told her that–what he had said to me at Wal-Mart, and he was yelling in the background, “No, she’s lying.” So she kept me on the phone until the officers came, which was about, probably, about a seven minute wait for the–there was about four officers that came to the house then. And then, I–I was called outside and I spoke with the officer, and I explained what happened. And I just said that I, you know, I want to leave the house and he doesn’t want–he’s–he’s saying that he’s not letting me go. So then, officers talked to him. And so, basically, the kids gathered what they could. and–and then
Q. Okay. And did you, indeed, go to grandma’s house?
A. I did, yeah.
Q. Okay. When is the next time that you heard from Mr. Sutton?
A. The officers went–the day–that–that night that I left, they asked me to call–they asked me to call him the next day and let him speak to the kids because he was upset about us leaving. So I called the next day, on the Saturday, which would have been July 7th. My oldest son, Mobeen (ph) didn’t want to talk to him, but the other two just talked briefly and just, you know, said hi, and whatever. I’m–I’m not exactly sure what–what they said, but they did talk to him. And then. I spoke to him, as well, and he asked me when I was coming back, and I said that I wasn’t, as long as he was in the house. And I don’t really remember much more of the conversation, but it–it went something like that.
Q. Okay. Did you continue to live at–at grandma’s house?
A. No. We–we moved around quite a bit for the six weeks that we were out. I stayed, for a period of time, I stayed at a co-worker’s house, Salma…
Q. Do you know what…
Q. Salma’s last name is?
A. Claudette. C-L-A-U-D-E-T-T-E.
Q. How long did you stay with Salma for?
A. The first week that I was away, I–I brought the kids with me and we stayed at her place for one week and then….
Q. Okay. I’m just going to stop…
Q. …you there. So you stayed at grandma’s place…
A. …the weekend.
Q. …for the weekend?
Q. And then which day did you move over to Salma’s house?
A. On the Sunday. So that would have been the 8th, I guess…
A. July 8th.
Q. And you stayed with her for a week?
A. Yeah, we stayed with her for a week. On the Friday, that — that following Friday, then we went back — we went back up to my mother’s house and actually, then I –I stayed at my –I –I would have stayed at my sister’s house then.
A. So I would spend the weekend with my sister. And I believe the next week — for the six weeks, it was a lot of back and forth, like that. I would –either they would stay with me, like I stayed at –with– they stayed with –with me with Salma for a couple of weeks here and there. They did stay, for a period of time, like, with my cousin, while I was back here in Mississauga, ’cause I had to work.
A. And then during the time that they were with my cousin, I — stayed at Salma’s house. I stayed for a period of time with my brother. And, yeah, so it was — it was just back and forth a lot.
Q. And you said that you were out of the house for six weeks?
Q. Okay. After that conversation with the — with the kids allowing to speak to Mr. Sutton, after that conversation, when’s the next time you heard from him, or had any communication with him?
A. I can’t remember offhand the exact date. But in — in the period of time of — or in July, he was — he would — would call, like, he would call my work at, like my work phone, my actual, direct line.
Q. Okay. Where do you–where do you work? A. At Max Factor.
Q. What’s the address of that?
A. 7640 Campbell, C-A-M-P-B-E-L-L, Road.
Q. Which city?
Q. When did he start calling that line?
A. It would have been the–the–the first, well, not the first–the first week I wasn’t at home, or I wasn’t at work, so it would have been the following week. I’m sorry, I can’t give you the date, but it would have been–it would have been the following week…
A. …after I returned back to work.
Q. Okay, so you didn’t go to work for that week…
A. I didn’t…
Q. …that first…
A. …go to work…
A. …for that first week, yeah.
A. But he did actually call–he did actually call the week that I was away and speak to one of the receptionists at–at work, asking for certain people and asking–well, just asking for certain people.
Q. Okay. The times that he called you? How many times did he call? Give us a…
A. A lot of, I mean…
Q. …picture of that?
A. …yeah, like, there’s two ways to call into my work. You can call my–I have a direct line, so you can call me directly, or you can call the switchboard and ask–ask to be transferred, or ask to have me paged. Like, there’s no paging system at work.
A. So then, what happens is that we all–we–at-¬at that time, we had mike phones, so then the receptionist could mike you, and tell you that you had a call or whatever the case. So when–when. I–when it was clear to me that he was going to keep calling me, I asked them to not put the calls through because I didn’t want to talk to him.
Q. Okay. How did it become clear to you that….?
A. Because it was–he was calling–it was–he was calling a lot.
Q. About how many times is a lot?
A. There would be calls after, like, there would be calls, after calls, after calls. And then there would be–and then there would be, like, a period of time, and then it would continually call again. And, I mean, sometimes I would pick up the phone, like, I–at that time, I didn’t have caller ID on my phone. But I don’t take any calls from outside, like, any work calls or–like–I don’t receive calls from clients. And, like, I just–I knew that it–I knew that he was trying to contact me. And then along with the phone records that they were taking at work, they–my lawyer asked for them to keep a log of–of the times that he was calling the receptionist to–to have me paged or to–to try and speak to me.
Q. Okay. So let’s take a one day example of that week that you were back at work? During a day, how many times would he call?
A. He would probably call my direct line–I’m–I’m just going to say, maybe, six or seven times.
Q. And of those six or seven times, how many times did you speak with him?
A. Probably once.
Q. And what was that conversation like?
A. The one–the one conversation that really sticks out in my mind is, I had answered the phone. He had asked how the kids were and then he said, “Oh, are you guys okay. Are you guys staying in a shelter? Is there anything that you need from the house?” And it just–it really upset me because, you know, here is the, you know, the father of–of these kids and he’s asking are we staying in a shelter. And, yeah, and–and most of it was just, you know, wanting to–he’d be like, “Well, I want to talk to you. You know, I think we can still work this out. You know, I think that we, you know, that if, we just need to meet and discuss–you know.” This was the–basically, the way the conversations would go.
Q. Okay. How did you know–you said you spoke with him the one time. How do you know that those six or seven other times…
A. I have…
Q. …were him?
A. …no proof, I mean, I have no proof, like to show that it was–like I don’t–like I said, I–I didn’t have caller ID or anything. But when you’re getting a call, one repeatedly after the other, I–I know that, you know, I mean, I’m just–that–that was an assumption of mine, but I felt that it was him.
Q. Okay. Now, we took a one day example. Was that persistent throughout the week or what was the–give us a flavour for the rest of the week?
A. Yeah. I–I–I’d–I mean, like I said, there was times when the–my phone would ring and I just–I wouldn’t answer it because I just didn’t want to talk to him. But yeah, that–I would say that that would be–that’s a pretty good example of the way the week went. And there was–and I–like there are phone records that show the–the calls that were logged from the receptionist, as well.
Q. Okay. And of the times that you spoke with him, would you speak with him every day?
Q. No? Okay. The times that you did speak with him, was there anything ever different in the conversation, or was it always along those same lines?
A. It was always along those same lines. I did receive one call, I think it was, I’m sorry, I don’t have the date–I–I can’t exactly remember the date, but…
A. …there was one time, I think it was a Monday, he–I–I received a call from him and he accused me of coming into the house on the Sunday, previous, and stealing $7,000 that he said he left on the table. And I wasn’t even in the city at that time and I wasn’t, you know, I mean, I wasn’t in–I wasn’t in the city at the time and I was not in our neighbourhood…
A. …at that time. But I mean, generally, it was just–it was the same thing, where it–I was just asked to let’s work this out. We still have, you know, we can still, you know, fix this, and….
Q. Okay. The–the calls, how did that make you feel?
A. It was upsetting. Because it–he–I mean, I’m trying to explain to him that, you know, that–that it’s over and we, you know–to, you know, to move on, or whatever. And it–it just–it- he wouldn’t–he didn’t want to accept it.
Q. Okay. Did you ever tell him to stop calling you? Any….
A. Yes, I did.
Q. How many times did you tell…
Q. …him that?
A. …time I spoke to him, I asked him not to call me.
Q. What was his response?
A. I don’t remember.
Q. Okay. Is there any time that you actually, throughout this period following the July 6th separation, did you ever see him?
Q. Okay. When was that?
A. There was one–there was one–I don’t remember the date, but he had called at one point and. I had picked up the phone and he had said that there was some items in the van that he wanted. It was his camera and sunglasses or something.
So I said, “Fine if you want to come by and get it, I’ll have it ready for you.” So he came to work. And I just had put it in a bag and I’d stepped outside of the door, and then he was waiting like, right, he was waiting just at the–at the right side of the door. So I didn’t–I wouldn’t have seen him when I came out of the door, but as soon as the door closed, then he was right there. And I handed it to him, and then he asked me for a hug and I said, no. And he wanted to talk and I said, no. And I just immediately opened the door and went back in.
A. There was another incident that happened on August the 6th. I–no, it wasn’t August–August the 3rd, I believe it was. It was another Friday. I was I was at a in sitting in a mall parking lot, talking .
Q. Which mall?
A. It was Erin Mills Town Center
Q. What city is that in?
A. and I was speaking with a friend. And as I was as I pulled out of the parking lot or out of my parking space, Mr. Sutton ran up to the van and opened the passenger door and started yelling at me, and asking me who was I kissing, and
Q. All right. Im just going to
Q. stop you there.
Q. Lets back up a bit. You were in your car?
A. Yes, I was in my van.
Q. Is that a family van? What what type of van is that?
A. Its a Dodge Caravan.
Q. Was it a van that the two of you had owned, at one point?
Q. Okay. So the family vehicle?
Q. Who was your friend?
A. Ralph (ph).
Q. Is Ralph a male?
Q. Okay. And so you you saw Mr. Sutton ran up to the vehicle?
A. Yeah, as I was–as I was pulling out, like, as I was backing out of the parking space, he–I saw him running up towards the van. I saw him in the rear-view mirror. He opened the passenger door and started yelling at me. And I and I just yelled back, and I just said, “Close–you know, close the door. And he did and then I drove away.
Q. Okay. How did that make you feel?
A. I was scared.
Q. And when you told him to get away from the vehicle…
Q. …what did he do?
A. He slammed the door shut. But then–and he, like, moved away from the van.
A. And then there was another time, on August, it would have been the following–I believe it was August 9th. I was sitting in the same van in the parking lot at my work. I was just finishing my lunch. And I saw him drive by on Campbell, and then he parked the car, and then he walked towards the van. And then he started calling me a slut and a whore and just, you know, wanting to–he was just insulting.
Q. Okay. What did you do?
A. I–actually, I didn’t even respond. I just–I just let him say what he wanted to say and then, I believe he walked away. And then I got out. And then I started to walk towards the building, and then he–so he had started to walk away and then I got out of van and started to walk towards the building to go back into work. And then he approached me again and was yelling at me and–and just, I–I don’t remember exactly what was said, but it was–it was just more of the same thing, about, you know, being a slut and a whore.
Q. Okay, and how did that incident make you feel?
A. Again, I was–I was scared and–and, you know, it–it was–it was becoming really–like, I was becoming really stressed out and really nervous because I felt like I had to, you know, constantly watch–watch my–around, like, watch where I was all the time because I–I was, you know, convinced that he was watching me, and I didn’t feel comfortable that way. And I–and I felt, like I-I–I didn’t feel safe.
Q. Okay. All right, that last time that we just spoke about, the August 9th occurrence, you told us earlier that at one time you were expecting him at work?
Q. Was there any reason for him to be at your work on this occasion?
MS. GREEN: Those are all my questions. Thank you.
THE COURT: Thanks. Cross-exam? Mr. Pain?
MR. PAIN: I–I just wonder if my friend’s going to….
MS. GREEN: No.
MR. PAIN: Okay. I’m–sorry.
THE COURT: Thanks.
CROSS-EXAMINATION BY MR. PAIN:
Q. Ms. Sutton, you–you met Mr. Sutton in 1988?
Q. Okay. And the two of you married in October of 1989?
Q. Okay. So you’ve been married nearly 19 years now. Is that correct?
A. No. We’ve been married 17 and a half years.
Q. Okay. As of today, about 19 years. Correct? 17 and a half at the time, fine.
Q. Okay. And you started having problems in the marriage in 2005, is that correct?
A. That’s when the–yeah, that’s when the major problems started.
Q. Okay. And did you tell him at the time that you didn’t love him anymore?
A. I told him at that time that I was–he had just spent six weeks in Australia. We had been going through a very difficult time before that. When he came back from Australia, I had told him that–that I was–I wasn’t sure how I felt about him. I said that, yes, I didn’t love him the way that I thought I should. I loved him as the father of my children, but not as the way that a wife should love her husband.
Q. Okay. But you didn’t ask for a divorce at that time?
Q. And you decided to stay together despite what you had said?
Q. Okay. But he wanted to work on the marriage, is that correct?
Q. Okay. But despite that, you started growing apart, the two of you?
A. Yeah, yeah–well, I mean, there was–yeah, yeah.
Q. Okay. And Mr. Sutton had suspected that you were having an affair, is that correct?
Q. And he had confronted you about that? About his suspicions?
Q. And you deny that you were having any sort of affair?
Q. Okay. And I’m going to suggest to you, ma’am, that in June of 2007, you started having discussions of a divorce–of a possible divorce? The topic came up.
A. We–we had–I hadn’t come out, exactly, and said that I wanted a divorce, but I had said, through the different discussions that we had had, I had said to him that, you know, at this point, that maybe, it was better if we had separated because I didn’t–I didn’t see that anything was going to get better. And anytime that I brought that up, it was to–he then told me that there was no such thing as divorce, that–that he would stalk me, that, you know, if I ever dated anybody, that he would kill–that they–that he would kill them, he would kill me.
Q. Okay. And, in fact, he had asked you whether or not you wanted a divorce, is that not correct?
A. I don’t remember.
Q. Okay. And in 2007, at the end of June, you had taken a family trip to Ottawa?
Q. Okay. And you told him at that time, that after you got back from your trip, you would let him know whether or not you wanted a divorce, or whether you were going to stay in the house? Do you recall that?
A. No. I–I–no. I did–I didn’t–I did not say that.
Q. Okay. So you don’t recall agreeing to any conversation where you said you’d let him know, after the trip, what you were going to do?
A. Well, while we were in Ottawa, as we were–as we had been having for about six to eight weeks prior to that, every day for about two hours a day, I had to sit there and have a conversation about this. So it might have very–I might have very well said that, but I can’t remember exactly.
Q. Okay. And so July 6th, 2007, the day that you left the house…
Q. …that evening, Mr. Sutton wanted to speak to you about the marriage, correct?
Q. Okay. And–and he asked you if you’d come to a decision?
A. I don’t remember.
Q. So it’s possible that he asked you that?
A. The conversation that–when we were up in the room and he was–we were discussing our relationship again, and it had come up again, whenever I had–whenever I had said to him that, you know, I, you know, maybe, we should separate, maybe we–you know, that this isn’t working out, the way that this is going, we can’t keep doing this, he would get hysterical. He would–he would freak out. He would become inconsolable. And in order to–to calm him down, because I was afraid of him, I did not know what he would do–if I–if I came out and said to him, I want to separate from you, I want a divorce, I really was not sure what he would do.
Q. Okay, well, I’m–I’m going to ask you again, ma’am, did–did he ask you that evening whether you had come to a decision?
A. I don’t remember.
Q. Okay. And then you left with two of your children for Wal-Mart, correct?
Q. Okay. And. I’m going to suggest to you, ma’am, that after some time, Mr. Sutton–approximately an hour later, came to the Wal-Mart and told you that he had decided to go to Niagara Falls to give you some space and time to think about your decision?
A. No, he did not say that to me.
Q. Okay. And I’m going to suggest to you, ma’am, that at that point, you decided that you were going to leave with the children that night? Do you agree with that?
A. No, I don’t.
Q. Okay. And would you agree with me that Mr. Sutton did not want you to take the kids with you when you told him that you were leaving?
A. No. I don’t agree with that.
Q. So he was….
A. He didn’t say that. He didn’t say that to me, that, I don’t want you to take the kids. He just said, You’re not leaving the house.
Q. I see. Okay. And you said you called 9-1-1 when you got back to the house?
Q. And the officers showed up at the house?
Q. And one of them spoke to you outside?
A. Yeah. Two–two officers spoke to me outside and two officers were inside.
Q. Okay. With Mr. Sutton?
Q. And you explained to them what had happened?
Q. And I suggest to you, ma’am, that you told the officers that you had no fear of Mr. Sutton. Do you agree with that or disagree?
A. I disagree.
Q. That you told them he had never threatened you?
A. I did not say that.
Q. So did you say anything to them about him threatening you?
A. Well, I–I–I made the 9-1-1 call and said that he had said, “Do you want to die?” I can’t imagine that I would, at that point, tell an–like, not bring it up to an officer. I don’t remember my exact–like, I don’t remember word for word what I said to the officers, but I don’t–I would not have not said that.
Q. Do you remember telling an officer you called 9-1-1 because you wanted to scare him a bit?
A. I don’t remember.
A. I don’t remember saying that I told the officers that I wanted to leave the house. Like I said, that’s why I called was because he was telling me that I couldn’t leave the house.
Q. Do you. remember speaking with a Constable Andre, that evening?
A. I’m not sure of the officer’s name. I can’t
A. …what officer I…
MR. PAIN: Your Honour…
MR. PAIN: …may I approach the witness, please?
THE COURT: For what purpose?
MR. PAIN: I have a–the notes of an officer here that I would like to put to her and I’d like her to see a copy of it. Or I can simply read it from here. That’s fine.
THE COURT: I–I–I just, you know, I’m not sure what putting it to her is going to do. I mean, unless she signed it, or saw the notes that the officer made at the time, it’s not something that she can testify about, is it? Other than, did you say this, did you say that, whatever’s in the officer’s notes. But beyond that, she can’t really say much about it, can she, Mr. Pain?
MR. PAIN: Well, she can either agree or disagree. You’re right,Your Honour.
THE COURT: Okay.
MR. PAIN: So I–I can put it to her from here, if Your Honour…
THE COURT: Sure.
MR. PAIN: …prefers? Okay. And I’m providing a copy to my friend.
Q. So these are the notes of Constable D. Andre, made on the 6th of July, 2007. And he says here, Female, Kate Sutton. Speak with female. Female states that have been going through marriage problems for two years now. Husband thinks that she is having an affair. Accuses of going on website or meeting up with men. Not substantiated.
Did you tell him that much?
A. Well, if the officer wrote that down, I would say that I–yes, I did.
Q. “Ask about threats. Said, male said, he was not wanting divorce because marriage is for life and until death.” Do you recall saying that?
A. No. If the–as–again, if the officer wrote that down, I would imagine that, yes, I said that.
Q. Okay. “Female said, he did not say he was going to kill or hurt her at all, but was made in reference to marriage until death.” Did you say that to the officer?
A. I don’t remember.
Q. So you could have said it?
A. I don’t know.
Q. “More problems in past three months because she wants to be separated.” Do you–do you recall telling the officer that there are more problems in the past three months?
A. Yeah. Things had–do I recall? No.
Q. No what, ma’am?
A. I–I don’t recall–I don’t recall exactly everything that I had said to the officer that night. Q. Is it possible you said that?
A. Again, if the officer wrote that down, I would–I would have to say, then, yes, I did.
Q. “Female calm. Advised not fearful for her safety.” Do you recall saying that?
Q. Is it possible you said that?
A. I don’t know.
Q. “Wants to go away for weekend to let things cool. Said is going to go to her parents’ house with the children.” Did you say that to the officer?
A. Well, that’s what I was planning on doing, so, yes.
Q. “No alcohol or drugs. Said, has never laid a finger on her in entire relationship.” Do you recall saying that to the officer?
Q. Is it possible you said it?
A. It’s possible.
Q. “Verbal disputes only. First time police involved. Female advised that called police because want him to know she wasn’t afraid to call to scare a bit.” Do you recall saying that to the officer, ma’am?
Q. Is it possible you said that?
A. It’s possible.
Q. That you said “to scare a bit”, that’s why you called?
A. No. I called because I wanted to leave the house and he wouldn’t let me. He was saying…
Q. But is it…
A. …that I wasn’t leaving….
Q. …possible that’s what you said to the officer, to scare…
Q. …a bit?
Q. Okay. The–the next day, you called Mr. Sutton, correct?
Q. And that was so he could speak with the children?
Q. And he asked you about when he could see kids next, correct?
A. I don’t remember. I don’t remember. I–I didn’t speak to him very much. I–my call–I called him because the officer asked me to call, so that he could speak to the kids.
A. The only–yeah, so that’s….
Q. Okay. Well, I’m going to suggest to you he did ask you when he could see the kids, and you had told him that you would call him on Monday to speak to him about that. Is that possible?
A. That’s possible.
Q. Do you agree with that? That that’s what you actually did?
A. That I did that? No.
Q. You–you don’t agree?
A. Sorry, can you ask the question again?
Q. Did you tell him that you would call him on Monday, the 9th of July, to speak to him about when he could see the kids next?
A. I told–I believe it was the Sunday, actually. He said for me to call him and let him know. He–he wanted to see the kids and I said I would talk to the kids about it and–and let him know. I did talk to the kids about it. They didn’t want to see him at that time, so I didn’t call.
Q. Okay. Well, I’m going to suggest to you that you spoke to him on Monday, July the 9th, and at that time he asked you again when he could see the kids, and that you had told him that he cannot see the kids unless he agrees to move out of the house?
A. I don’t remember–talking to him on Monday, July 9th, because I wasn’t at work. And I was–I don’tI don’t remember talking to him on July 9th.
Q. Okay. But the fact that you weren’t at work doesn’t mean that you couldn’t have spoken to him, correct?
A. I wouldn’t have called him, myself.
Q. But, did you speak to him on Monday .
A. I don’t .
Q. July 9th?
Q. You don’t remember?
Q. But you remember that you didn’t call him.
Q. So is it possible you called him on Monday, July 9th?
Q. Did you speak to him about moving out of the house, ma’am?
A. When – – when are you asking me, did I speak to him about that? Are you saying in general?
Q. In – – on July 9th? Or
A. No, I – – I’m – – I
Q. around that time?
A. I don’t remember. After I – – after I called him on – – on Saturday, July 6th, I believe , or the 7th, I don’t remember the next time that I spoke to him. I’m – – but I’m just – -knowing that I wasn’t at work, that he did not know where I was, I did not — not – -I did not want him to know where I was, I wouldn’t have called him.
Q. After you left the house, did you speak to him about him moving out of the house and you moving back with the kids?
A. The conversation that I – – all I remember from the conversation on July 7th when I called him to let him talk to the kids, I–he asked me when I was coming back, and I said that I wouldn’t be coming back as long as he was in the house. I’m–I don’t remember specifically asking him to move out. But I remember specifically saying that as long as he was there, that I was not going to be returning to the house.
Q. At any time after you moved out on July 6th, did you ask him to move out of the house so you could move back in with the kids?
A. Yeah I probably did at one–at one….
Q. When was that, ma’am?
A. I don’t remember exactly when. I–it was probably a conversation that I had with him
when I was at work.
Q. Okay. And when would that have been?
A. One of the times that he called my–mymy desk.
Q. Okay, so–now, you said in your testimony in chief, you had taken the following week off of work?
Q. So if the 9th is the Monday, then you wouldn’t have been back until the 16th?
Q. So your testimony is that you probably spoke to him sometime after the 16th about him moving out?
Q. I’m going to suggest to you, ma’am, that, infact, fact, you’d spoken to him earlier about moving out of the house? That you wanted him to move out so you could move back in with the kids.
A. I don’t remember.
Q. And I’m going to suggest to you, ma’am, in fact, you sent a lawyer’s letter to him, asking him to move out of the house, dated…
A. That would mean…
Q. …July 12th?
A. …my lawyer sent a letter. I wouldn’t have sent a letter.
Q. Okay. Did you instruct your lawyer to send him a letter asking him to move out of the house?
A. If you have a copy of that letter, then I would have to say yes.
MR. PAIN: Okay. Your Honour, may I show this letter to the witness, please?
THE COURT: Any objections?
MS. GREEN: haven’t seen a copy of it.
MR. PAIN: I’m providing it to my friend.
MS. GREEN: I’ve no objection. Thank you.
MR. PAIN: Q. Now, that letter is dated July 12th, 2007, correct?
Q. And the third last paragraph, the last sentence, reads,
We are requesting that you leave the house and allow her and the children to return there while we negotiate the terms of an amicable separation agreement. If you are not willing to do so, Ms. Sutton will be forced to commence a court application to seek this and other relief on an urgent basis.
Based on this letter, would you agree with me that shortly after you left the house, you asked Mr. Sutton to leave the house?
A. Well, if you’re–I mean, if–are you talking about the letter? Your questions really–it doesn’t make any sense. I’m sorry.
MR. PAIN: Okay. You’ve been….
THE COURT: Sorry, what part are you having trouble with understanding?
A. Well, he’s asking me, at one point, did I tell him to move out of the house. Yes, I–I believe, at one point, I did. If you’re asking me was it the week that I was not at work, I–I don’t believe I spoke to Mr. Sutton that week. I can’t exactly remember what date that I would have asked him to do that, but, yes, I–I, at one point, through one conversation, I asked him to–yes, I would have asked him…
THE COURT: She obviously…
A. …to move out.
THE COURT: …doesn’t understand the question. Could you repeat it?
MR. PAIN: Okay.
Q. The letter is dated July 12th…
Q. …2007. Correct?
Q. I’m suggesting to you, ma’am, that based on the date of the letter, that you would have suggested to Mr. Sutton before July 12th, that he move out of the house?
A. And I’m saying, I don’t remember a conversation before July 12th that I had with Mr. Sutton asking him to leave the house. I do remember on July 7th, that Saturday, that–the first Saturday that we were away when. I spoke to him and I asked him to–I–I–he asked me when I was coming back, and I said I would not be returning to the house while he was there.
MR. PAIN: Okay. Your Honour, I’m sorry, I–I wonder if I could ask for a short break. There’s a whole section of my cross-examination which I wonder if it’s even relevant anymore, so I–I’d just like a moment to reflect on that.
THE COURT: Sure, Mr. Pain. How much time do you need?
MR. PAIN: About five minutes.
THE COURT: All right. Is there–you’re being swarmed here, Ms. Green. I take it there’s something we can do?
MS. GREEN: Yes, there are two matters, I believe, that we can address.
THE COURT: Okay. Why don’t we take, you know, at least 10 on your matter, Mr. Pain, because it’s going to be a–a few minutes to deal with the other two matters, okay?
MR. PAIN: Yes, sir.
THE COURT: All rightie, Ms. Green, what can we do? You can step down, ma’am.
A. Thank you.
…INTERRUPTION RE UNRELATED MATTER
MR. PAIN: Yes, thank you, Your Honour.
THE COURT: Right. Are we all set?
MR. PAIN: Yes, I am, Your Honour.
THE COURT: All right, let’s continue.
MR. PAIN: Q. Ms. Sutton, you’d said in your testimony in-chief that Mr. Sutton started calling the office a lot…
Q. …after you left, correct?
Q. .And in fact you had the reception workers start to log his calls?
Q. And–and when was it that you started to have them do that?
A. I believe it would have been–well, you have a copy of the–do you have a copy of the court–of the phone log? I believe it was the week that I would have returned to work, so I’m not sure exactly of the date.
Q. So if you took off a week of work after you left…
Q. …and July 9th, was a Monday, so then you would have started work again July 16?
A. Okay. On the Monday, yeah.
Q. Okay. And–and that’s when you asked them to start logging his calls, the–the Monday you got back? A. I–I–yeah. I believe so, yes.
Q. Okay. And I’m going to suggest to you, ma’am, that on July 25, that you had a four-way meeting between you, Mr. Sutton, and your two family lawyers?
Q. Okay. And there were certain things discussed at that meeting, obviously. And I’m going to suggest to you, ma’am, that you never, either you or your lawyer at that meeting, never suggested to either Mr. Sutton or his lawyer, that he was calling you too much or that he should stop calling, correct?
A. I don’t remember.
Q. Do you remember agreeing on that date that you would provide the children with a cell phone so that Mr. Sutton could have contact with them?
Q. And you also agreed that on July 28th, he could see his children at the Playdium?
Q. And that’s a–it’s a play place in Mississauga, correct?
Q. Okay. And Mr. Sutton had also asked you about your daughter’s birthday, your daughter, Maegan, she turned–she was having a birthday on August 7th, correct?
Q. And he wanted to have dinner with the kids?
A. I–I–I don’t remember having a conversation in person. I believe he had called, at some point, and asked about seeing her on her birthday.
Q. Okay. Well, I’m going to suggest that at that meeting he asked about seeing her, and you said he could see the kids for dinner, but you would not be there. Do you recall that?
Q. Okay. Did you have that conversation with him, at some point?
A. About her birthday?
A. Yes, there was a–I believe he called on my cell phone before–the weekend before her birthday, I believe.
Q. I–I’m sorry, say that again, please?
A. I said, I think he called on my cell phone, or it would have been after the–it would have been after the Playdium, the time that the children spent with him at the Playdium.
A. I don’t know what–what this has to do with__
Q. Okay. Well, I’m -I’m simply suggesting to you that on July 25, 2007, during the four-way meeting, Mr. Sutton asked you about taking his children out for your daughter’s dinner on August 7th. And you said, Yes, that would be fine, except you would not be going. Do you agree or disagree with that?
A. I don’t remember, as I just said that.
Q. Okay. And. I’m going to suggest to you, ma’am, that when you told your reception people at your work to keep track of your call–of Mr. Sutton’s calls, that, at that point, you only told them to keep track of the calls and you didn’t tell them not to put the calls through?
A. Yes, I did.
Q. Well, you had mentioned earlier that he would have you mike’d, correct?
A. He can ask–he can ask them to mike me, yes. And I believe on the phone records, it is stated there that the receptionist told him that I had asked that the calls not be put through. It is–it is noted on that phone record.
Q. Okay. And do you recall when that was?
A. When–when what was?
Q. When Mr. Sutton was told?
A. No, I don’t remember the date.
Q. Okay. Well, I’m going to suggest to you that right up until July 31st, he was not told not to call and his calls were, in fact, either mike’d to you or put through to your voicemail. Do you agree or…
THE COURT: Did…
MR. PAIN: Q. …disagree with that?
THE COURT: …did you say July the 29th?’
MR. PAIN: July 31, Your Honour.
THE COURT: July 31, sorry.
A. I don’t remember–I–I don’t remember.
Q. So it’s possible that you did not tell your reception till July 31 not’ to put his calls through?
A. It’s – I–I don’t know, it’s possible.
Q. Okay. And I’m going to suggest to you, ma’am, that once you told your reception not to put his calls through, he stopped calling reception and asking for you, after July 31?
A. I don’t remember. Like I said, there’s–the phone log is there. So I’m not sure what the dates are.
Q. And I’m going to suggest to you, ma’am, that when you were asked by your reception, “What shall we do with his calls?” What you told them is, “On the advice of my lawyer, don’t transfer the calls.” Is that correct?
A. I don’t remember. I don’t know.
Q. Is it possible you said that? “On the advice of my lawyer, don’t put his calls through?”
A. It’s possible.
A. As well, if I–I’d like to add, I was telling him, whenever I spoke to him, that I didn’t want to talk to him.
Q. Okay. Well, I’m going to suggest to you ma’am, that you never did that, but we’ll get to that in a moment. You had told Mr. Sutton–you’d agreed to provide Mr. Sutton with the cell phone number for the kids, so he could contact the kids, correct?
Q. because you’d left on July 6th and he hadn’t seen them since then? Correct?
Q. And on the 29th of July, he met the children at the Playddium, correct?
A. I thought it was the 28th?
Q. Well, I’m going to suggest to you that the agreement was for the 28th, but then it got changed to the 29th. Do you recall that?’
Q. Okay. Well, when….
A. It was a Saturday, that’s all I remember.
Q. Okay. So whenever it was, he did meet the children, whether it was the 28th or 29th. And he had asked you whether you had the cell phone number, and you told him you didn’t have a number for him?
A. No. I said that I had the cell phone, but it wasn’t activated.
Q. Okay. So bottom line is you didn’t have a number to give him? Correct?
Q. Well, do you agree with that?
A. I don’t remember. I–I—I know I had the cell phone. I–it was–it hadn’t been activated yet. I don’t remember exactly how the conversation went.
Q. Did you give him a cell phone number that day?
A. No, I don’t believe I did.
Q. Okay. And I’m going to suggest to you on July 31st, he called you several times because he wanted to find out if you had a cell phone number for him, because he wanted to speak to his kids and he wanted to speak to your daughter about her birthday?
A. I don’t remember.
Q. Okay. Were you in contact with Mr. Sutton during this period? Would you respond to him, or initiate contact with him?
Q. Did you ever phone him during this time, yourself?
A. No. Actually, I did call just prior to the meeting that we–the four-way meeting that we had with the lawyers, because I was requesting the extra key for the van, and–’cause he had the extra key for the vehicle and I asked that he would bring it. Oh, and also, the dog’s–we have a dog, and he had this flea medication, or whatever it was, so I asked him to bring it to the–to the Playdium when he came.
Q. So there are times that you would call…
A. I called once.
Q. …Mr. Sutton?
A. I called once.
Q. Did you also have email contact with Mr. Sutton?
A. I know a couple of times he emailed me pictures of us, to bring back memories. I know he had emailed a couple of times asking about the kids and what not.
Q. Well–okay. And I’m going to suggest to you on July 31st when he called you, he also emailed you and you responded to him, in fact, a couple of times.
MR. PAIN: Your Honour, may I approach the witness with a copy of the emails, please?
THE COURT: Sure.
MR. PAIN: And I have a copy for my friend.
MS. GREEN: Your Honour, I haven’t received a copy of the emails, nor have I received notice that documentary exhibits would be used in this trial, so I’d be objecting.
THE COURT: You’d be objecting?
MS. GREEN: To the–to the evidence going in as exhibits.
THE COURT: We haven’t got to the exhibit portion yet.
MS. GREEN: Okay.
THE COURT: Nobody’s identified them. But if she identifies them as being accurate, what would be the basis of your objection?
MS. GREEN: We didn’t receive notice of them. It wasn’t canvassed at any of the pre-trial discussions that anything would be introduced and I haven’t had a chance to review them, nor a–a…
THE COURT: You’ll certainly have a chance to review them. Take as long as you want. But…
MS. GREEN: Okay.
THE COURT: I’ll Hear your objection later, but…
MS. GREEN: Certainly, we can proceed and then perhaps, in the meantime, I’ll look through them…
THE COURT: Sure.
MS. GREEN: …just for….
MR. PAIN: Q. I’m handing you, ma’am, a series of emails. I’m going to suggest to you that this exchange took place between you and Mr. Sutton on July 31. And if you turn to page two, he sends you an email at 11:49 a.m. “Hi, Kate, I just want to know how are the kids doing and if they are with you. Take care, Shane.” And then you respond and the email address for you is Kate.email@example.com. Is that your email address from work, ma’am?
A. Yes, it is.
Q. And you respond saying, ‘The kids are doing okay and I have the cell phone number for them.” And then you list the cell phone number and then…
Q. …you sign it, “Kate.”
Q. That’s an email from you, correct?
Q. And then at 1:57 p.m., he sends you another email, saying, “Hi, can you give me a call, please. I have to tell you something important.” And then you respond to him,
“I’m really busy today. I’ll call you tonight and talk to Sid, (ph) too.” Sid is his brother, correct?
Q. Okay. And is that a response you sent to him?
Q. Then he sends you another email at 3:15. “Hi, Kate, Do you have the kids’ phone with you? There’s a problem with it. Are the kids here with you or are they away with your cousins again? Please let me know. I love them and I want to talk to them. Shane.” And you respond to him, at 4:30, “Shane, the kids have the phone with them and they know you have the number. I said I’ll call you tonight. Kate.” You responded.to him? That’s your response, ma’am?
Q. And you certainly didn’t tell him not to call you at work, correct, in the email?
Q. And, in fact, you did call him that night, correct?
A. I don’t remember.
Q. You’re in–you’re going through a divorce, currently, with Mr. Sutton, correct?
Q. And there are obviously many issues between you? The house, correct?
Q. The children? Custody and access? Support payments? Do you agree, ma’am?
Q. Other property, bank accounts?
Q. Okay. And you mentioned, in your testimony earlier, that you’d called Mr. Sutton July 7th, so he could speak with the kids after you left the house?
Q. And I’d suggested to you that you spoke to him shortly after that to talk to him about seeing the kids and possibly moving out of the house? Do you agree with that?
A. If that’s what I said, yes.
Q. Okay. And. I’m going to suggest to you as well, ma’am, that on….
MR. PAIN: I suppose, Your Honour, at this point I should ask that that email be marked as an exhibit? I wonder if….
THE COURT: Any difficulty with it being marked as an exhibit?
MS. GREEN: No.
THE COURT: All right. Thanks. Next exhibit. Is that Exhibit One, Madam Clerk?
MS. GREEN: I believe that’s…
COURTROOM CLERK: Yes.
MS. GREEN: …Exhibit One.
COURTROOM CLERK: That would be Exhibit One.
THE COURT: Yeah. There was never a request on the other. All right. Thanks.
EXHIBIT NUMBER 1: July 31, 2007 emails – Produced and Marked.
MR. PAIN: Q. I’m going to show you another email, ma’am, and I’m providing a copy to my friend, dated July 16th, 2007.
THE COURT: July 16th, did you say?
MR. PAIN: July 16, Your Honour, yes.
Q. Mr. Sutton writes you at 8:07 – sorry, his email is July 15, 8:07 p.m.
Kate, I got your lawyer’s letter today, which is Sunday afternoon. The courier guy left the letter in the mailbox. And you know we never check that and there were a few junk mails on top of it and I found it accidentally. Could you tell your lawyer I need more time. My lawyer was in vacation and won’t see me till tomorrow 6:00 p.m., which is the deadline on your lawyer’s letter. And then you responded July 16, “Hi Shane, thanks for letting me know. I’ve passed the message on to my lawyer.” Is that a response you sent?
Q. Okay. You sent him–and I’m providing a copy to my friend–another email on July 18th, which I’m showing you a copy of.
MR. PAIN: I’m sorry, Your Honour, if I could have that second email marked as an exhibit, please?
THE COURT: Any difficulty that this is Exhibit Two?
MS. GREEN: No.
THE COURT: Thanks. Exhibit Two.
EXHIBIT NUMBER 2: July 16, 2007 email – Produced and Marked.
MR. PAIN: Q. This one–Mr. Sutton sends you an email July 18th, 2007,
Hi Kate, would you please let me know how are the kids doing. I’m worried about them and at least let me know how they are doing every few days, please. I know you’re not comfortable there and you’ve been through a lot and I wish I could help to ease your pain. I want to say I regret what happened, and it was not right, and it shouldn’t have gone this way, but I want you guys to know that I’m here for you guys. I miss you guys and I love you all very much. And I want you to know how much you guys mean to me. More than my words can say. Shane.
Then he puts, “P.S. Joan’s mom called for Maegan. She said to call her back for the birthday party. They have changed the place for it. The number is….” and then he lists the phone number. And you respond, “Hi, Sane, the kids are doing fine, all things considered. I’ll tell them you were asking about them and thanks for letting me know about the party info for Maegan. I’ll let her know. Kate.” Did you send that email?
MR. PAIN: Okay. Your Honour, if I could ask that that be marked as an exhibit, as well, please?
THE COURT: Any problems with the proposed. Exhibit Three?
THE COURT: No.
THE COURT: Thanks. Exhibit Three.
EXHIBIT NUMBER 3: July 18, 2007 emails – Produced and Marked.
MR. PAIN: Q. You said, ma’am, there was a day where Shane had called you at the office and said he left some property in the minivan?
Q. Sunglasses, a camera, or something like that?
Q. And you told him to come by and pick it up?
Q. Okay. And I’m going to suggest to you that that was July 23rd? Do you recall that?
A. I don’t recall the date, no.
Q. Okay. The 25th of July, before your four-way meeting between the lawyers and the two of you, do you recall calling him in the morning and asking him to bring something? A. To the meeting?
Q. From the house? From the house to the meeting?
A. Yes. I called and asked him to bring the medication for the dog and to bring me the other van key.
Q. Okay. Because now you’ve moved out of the house and he was in the house, correct?
Q. Okay. There’s an email here, ma’am, from August 1. Mr. Shane–Mr. Sutton writes to you, “Good morning, Kate. I never got the cheque for the carpel tunnel wristband that you sent to the insurance. Can you–can you check please. Also, I have other stuff. How do I give it to you? Shane.” And then, your apparent response is, “Hi, Shane, what other stuff do you have that you need to give to me? Kate”. Did you send that email?
Q. Okay. And ‘this is now–he’s covered under your medical coverage?
Q. Okay, so he’s looking for the cheque for–for the wristband, is that correct?
Q. Okay. And now this is how you’re dealing with each other because you’re separating and going through divorce, right?
MR. PAIN: May I ask that that be marked as an exhibit, please, Your Honour?
THE COURT: Thanks. Any difficulties as the next exhibit?
MS. GREEN: No.
THE COURT: Thanks. Exhibit Four.
EXHIBIT NUMBER 4: July 25, 2007 emails – Produced and Marked.
MR. PAIN: Q. There’s another email later that day. August 1, 2007, 10:42 a.m. from Mr. Sutton. Kate, the kids’ phone is off. Do you have it with you? I want to talk to Maegan about her birthday. She told me that she will contact me and let me know what she wants for her birthday. And your response, nine minutes later is,
Hi, Shane. As I told you before, that is the kids’ phone and they have it with them. I will tell Maegan that you want to talk to her about her birthday. Kate.
Q. Did you send that email?
MR. PAIN: May I ask that that be marked as an exhibit, please, Your Honour?
THE COURT: Thanks. Any problems with any of these, you just tell me Ms. Green, but otherwise, we’ll just make them exhibits. Exhibit Five.
MS. GREEN: Sounds like a good arrangement. EXHIBIT NUMBER 5: August 1, 2007 emails – Produced and Marked.
MR. PAIN: Q. And I have just one final email. This one is dated August 3, 2007, at 9:14 a.m., Mr. Sutton writes, “Hi Kate, I’m waiting for your reply about your bank deposit. Thanks, Shane.”
THE COURT: Sorry, what date was this again?
MR. PAIN: August 3, 2007.
Q. And your response 10 minutes later is, “Hi, Shane. My lawyer will be contacting your lawyer regarding this matter. Kate”. Did you write that email, ma’am.
Q. And, again, these are all sort of family separation matters that you’re discussing here, correct?
MR. PAIN: May I ask that that be marked as an exhibit, please, Your Honour?
THE COURT: All right. Exhibit Six.
EXHIBIT NUMBER 6: August 3, 2007 emails Produced and Marked.
MR. PAIN: Q. The–you’d mentioned, in your testimony in-chief, that you have–that Mr. Sutton had approached you on August 9, 2007 at your workplace, correct?
Q. Okay. And you have a joint bank account with him, or you had one, at the time?
Q. Okay. And out of that was paid the mortgage, the lease payments on the minivan and other expenses?
Q. And, in fact, he had raised with you the issue that he was concerned that you were no longer depositing your pay cheques into that account? And he was worried that things would start–payments would start bouncing, correct?
A. I don’t remember exactly if that was part of the conversation, or not.
Q. Okay. Well, when he came to you on August 9, I’m going to suggest to you, ma’am, the issue he raised with you was the fact that you–you were driving this van which was in his name, and he wanted to know what to do with the van because it was a leased van and you weren’t putting your pay cheques into the joint account anymore, correct?
A. He–he did mention about the van. As for the van being in his name, it was–it was all–it was actually in my name.
Q. Okay. But he wanted to know whether the van should be kept or whether you could agree on returning the van, correct?
A. I don’t remember exactly what the conversation was. I know he had said something about the van, what were we going to do with it. And I–I don’t remember what my response was.
Q. Okay. And I’m going to suggest to you, ma’am, that that was actually–you had gone away for–for several days with your children and that was your first day back.
A. I don’t remember if that was the first day back, or not. I’m not sure.
Q. Okay. And I’m going to suggest to you that Mr. Sutton was supposed to see his daughter and–and the other children on August 7th, but you had decided to take them away and gone away for several days. Do you agree with that?
A. I don’t believe there was anything decided that he was going to see them on August 7th. I don’t think there was anything decided between him and Meagan.
Q. Did you go away for several days with the kids?
A. For the week–it was a long weekend. So, yes, I did go away for the long weekend
Q. And–and he had asked you where you were going, correct?
Q. And you refused to tell him.
A. I did tell him.
Q. When did you tell him?
A. On the phone
A. The night that he called and was asking about the weekend, about what we were doing.
Q. Is this before or after you went away?
Q. Okay. Well, I’m going to suggest you never told him where you went…
Q. …and I’m going to suggest part of the reason why he came to your work is that he was worried about where you had taken the kids, and that was the first day you were back?
A. Well, I’d have to disagree with that.
Q. Okay. And I’m going to suggest to you that, at no point, did he call you any of those names that you’d mentioned in your testimony in-chief?
A. Of course not.
Q. I’m sorry?
A. I said, of course not.
Q. Okay. Sorry, do you agree or disagree with that?
A. Do I–I disagree with him saying that he didn’t say that.
Q. Okay. The–the August 3rd incident, you said that he approached your car while it was parked at a–in a mall?
A. M’hmm. Yes,
Q. And that was the Erin Mills Parking lot?
Q. Okay. And, ma’am, you work–you work full-time, do you?
Q. And what are your work hours?
A. 8:30 to 5:00, but it is flexible. So I can come in earlier or, stay later or, whatever the case, but generally it’s 8:30 to 5:00.
Q. Okay. And what time were you at the mall?
A. I don’t remember.
Q. No recollection what time of day it was?
A. No. It was later in the day. It was probably 5:30 or 5:00, but I don’t remember exactly what time.
Q. Okay. And you first saw him when he approached your minivan, correct?
A. Yeah. I saw him running across the parking lot towards the–the van.
Q. Okay. And that was the first you saw him that day?
Q. Okay. And that is also a–that’s a rather large mall. That would be, sort of the closest mall to wherewhere your home is, correct?
A. To where the home is?
Q. Yeah, to where your family home is?
Q. Okay. And you were parked in the Sear’s parking lot?
Q. And you were parked in a far corner?
A. I usually park away from the busier spots just because it’s–it’s–for one thing, it’s a van, it’s easier to park, and also to avoid scratches. It wasn’t the farthest parking spot, but it wasn’t the closest, either.
Q. And you were in. your van speaking to a friend?
Q. Okay. And this–where’s–this friend is a work friend?
Q. And you were all the way over at Erin Mills parking lot?
A. Yes. Any particular reason for that?
A. I was–any particular reason for what?
Q. For why you were with your friend at Erin Mills as opposed to speaking at work?
A. I was on my way to the mall, and–anyway, because I was picking up a present for my daughter. And I had called my friend, ’cause I had wanted to speak to him during the day, but he was unavailable. And he was in the same area, around the same time, so we ‘decided to meet–to meet there because it was–it was on his way and–and I was going there at that time anyway. So we had just decided to stop and talk for a few minutes.
Q. That–that mall is about 10 kilometres from your workplace, is that correct?
A. I’m not exactly sure how far it is.
Q. It’s kind of far, correct?
A. No, not particularly.
Q. Okay, and this person, Ralph, he–he lives in Burlington, is that correct?
Q. And the–the 401 is pretty much right off of were you work, correct?
Q. So when Mr. Sutton approached your car, he saw the two of you sitting in the car?
A. No, I was leaving the parking space when Mr. Sutton approached the car.
A. And as I said, he was running across the parking lot to–to the van.
Q. Okay. And so by your testimony, he confronted you?
Q. And then you yelled at each other a bit?
Q. You ‘asked him to shut the door?
Q. Which he did?
Q. And then you drove off?
Q. Okay. And I’m going to suggest to you, ma’am, that, in fact, when he approached your car, he caught the two of you in a moment of passion and that’s what he was yelling at you about?
A. That’s a lie.
A. I was–I was–I had pulled out. I was in my van. I had backed out of the parking spot. I was proceeding to put the van in drive and leave the parking lot, and that is when Mr. Sutton approached the van.
Q. And where was this other person, Ralph?
A. He would have been in his car at that time:
Q. I see. So that–the two of you were not in–in your car having an intimate moment when Mr. Sutton approached?
Q. Okay. And then you drove off?
Q. And as far as you’re aware, Mr. Sutton didn’t get in his car and follow you?
A. As far as I know.
Q. Okay. In fact, you met his brother later that evening, correct?
Q. And that was for a supper between–because his brother wanted to see the children.
Q. And you had specifically told Mr. Sutton’s brother that, I will meet you with the kids, but I do not want my husband there.
A. That’s right. Yes.
Q. And, in fact, he didn’t show up, correct?
A. Not at the restaurant.
A. But he was–he approached the children in the van in the parking lot when we were leaving.
Q. Okay. And he–you–you said, essentially, you did not want to have dinner with him, correct?
A. With who?
Q. With Shane.
A. That’s right.
A. I asked–I asked….
Q. And he said hi to your kids?
A. It wasn’t–he did not say hi. He had words with them. And I specifically told his brother, Sid, that I did not want him there, meaning, at the restaurant, in the parking lot, anywhere near. There was no reason for him to be there.
Q. Well, you left the house on July 6th, with the kids, correct?
Q. And the only time he’d seen them is July 29th?
Q. Does he love his kids?
Q. So then he had a reason to be there, wouldn’t you agree?
Q. He had no reason to be there and see his kids?
A. No, not under–not under the conditions that he was there.
Q. Well, he approached the van and he spoke to them. Did he say anything to you?
Q. What did he say to you?
A. He said, basically, I know what you’re doing, or I don’t know exactly. Something about I have photographs and–and then, that was about it.
Q. You never mentioned any of that to the police in your interview, did you?
A. I don’t recall.
Q. So by your account, he had no reason to be there to see the kids?
Q. You–you went to the police on August 15, 2007, correct?
Q. And I’m going to suggest to you, ma’am, that you moved into the house pretty much the same day that Mr. Sutton was arrested?
A. No, it was not the same day.
Q. Okay. So he was arrested when, the 15th? A. I believe so, yes.
Q. And you moved in when?
A. I think it was two days later.
Q. The 17th?
Q. Okay, and up to that point, you’d been asking him to get out of the house so you…
A. I don’t recall…
Q. …could move back…
Q. …with the kids?
A. Pardon me?
Q. So you could move back with the kids?
A. I really–I don’t really recall exactly how many times I asked him to do that. I don’t recall exactly how many conversations I had with him after July 6th.
Q. But you certainly did ask him to leave the house, correct?
A. I would have asked him at least a couple of times, yes.
Q. And he wasn’t leaving. He said, “The kids can came back and live here. If you want to stay out, you stay out.” Correct?
A. I don’t recall. Probably.
Q. Okay. And him being arrested, that allowed you to move back into the house?
Q. And it was rough while you were out of the house for the six weeks.
Q. You moved around to, what, eight different places?
A. I don’t recall how many, but it was–it was a lot, yes.
Q. Okay. And one of the things you’re asking for in–in your family case is sole custody of the children, correct?
A. Sole custody? Yes.
A. Sole custody, or – sorry, say that again?
Q. Sole custody of the kids? You don’t want Shane having joint custody or any say over their lives, do you?
A. No. There’s–there’s different definitions of of
Q. Okay. So what are you after ?
A. …joint custody.
Q. …in terms of the kids?
A. I don’t know where this is going with this. Like, why are you asking me this when it has–what–like, I want to know why I’m being asked this when it’s–with relation to what’s going on right now, for the harassment?
THE COURT: Do you want me to direct her?
MR. PAIN: Yes, please, Your Honour.
THE COURT: You’ll answer the question.
A. Okay. Okay, can you ask–can you ask the question again, please?
MR. PAIN: Q. What are you – are you asking for sole custody with respect to the children?
Q. Okay. And, in fact, you’re even fighting Mr. Sutton with respect to even letting him see the kids, isn’t that correct?
A. No, it’s not.
Q. How many times has he seen the children since his arrest?
A. I don’t remember. They’ve seen him–there-¬there was a court date, we had an access schedule set up. There have been visits. We went twice. We went two different times to court. The second time, the access–the access was changed, so that it was between Mr. Sutton and the children. And that’s, like, that is between him and the children. And there’s–there is visits, but it’s not–it’s—it’s not to the extent of what it was before.
Q. Okay. And, in fact, you’ve had to go to court for that, because you’ve never agreed to allow him to have access. He’s…
A. No, that’s…
Q. …had to go…
A. …not true.
Q. …and apply for it. Isn’t that correct?
A. That’s not true.
Q. And, in fact, ma’am, within days of him being arrested, you brought an application to the family court to have him denied any sort of contact with the kids, isn’t that correct?
A. That’s not true.
Q. Did you sign an affidavit on August 22nd, asking that he have no contact with the children?
MR. PAIN: May I approach the witness, Your Honour, with a copy of that affidavit?
THE COURT: Yes.
MR. PAIN: I’m providing a copy to my friend.
Q. If you’ll turn to the second last page, ma’am, is that your signature, there?
A. Yes, it is.
Q. Okay. And–and what’s the date there, ma’am?
A. August 22nd, 2007.
Q. And do you see where it says there, “Sworn, affirmed before me.”
Q. Okay. So you did this–you did swear this affidavit, is that correct?
Q. And this is now–Mr. Sutton was arrested August 15. And now August 22nd, you’ve got this emergency application together to deny him access to the kids, correct?
A. I don’t remember that that was–that was the one and only purpose of this.
THE COURT: Do you understand the question, ma’am?
A. He’s asking me–what I’m understanding–his-¬he’s asking me, did I sign this to say that he cannot see the kids? Is that what he’s not saying–is that what he’s saying?
THE COURT: Yes.
A. I–that’s not what I signed.
MR. PAIN: Q. Okay. I’m going to ask you, ma’am, to turn to the third page in. Do–do you see it numbered one to ten?
Q. Okay. And can you read out number five, please?
A. “A court order preventing the respondent from contacting the children directly or indirectly by telephone or email.”
Q. Okay. And if you go to the last page–so that certainly sounds like you don’t want him to have contact with the kids, would you agree with that?
A. What did you want me to look on the last page for?
Q. I–I’m sorry. Sorry, I missed what you said?
A. You asked me to turn to the last page, but I don’t…
Q. Sorry, just…
A. …know what I’m…
Q. …a moment, please.
A. …supposed to be looking at?
Q. Okay. So number five, “Court order preventing the respondent…,
Q. …from contacting the children…
Q. …directly or indirectly by telephone or email.” Correct?
Q. And–and, in fairness, paragraph number three says, “Access to the children by the respondent to be exercised only if agreeable to the children.”
A. Yes, to the children.
Q. Okay. Now, the last page is Mr. Sutton’s bail conditions, correct? Do you see that?
Q. Number six says, “Access to your children to be arranged through a mutually agreed third party or a valid ‘court order dated after today’s date.” Correct?
Q. And you had a copy of this document?
Q. So there was already something in place, would you agree with that, that governed his contact with the children?
Q. But I’m going to suggest to you, ma’am, as soon as he was arrested, you rushed off to court to try to limit that even further so that he would have no contact with the kids? Do you agree with. that?
Q. And, in fact, one of the basis you made in your application, at paragraph 23, is that you had “Grave concerns for the safety of my children, if they are in the company of
the respondent.” Do you see that?
A. Sorry, which–which line? Line number what, sorry?
Q. Paragraph 23, the last sentence.
Q. And that was the basis for your application, correct?
Q. Yet Mr. Sutton had seen the kids on the 29th of July, correct?
Q. He had three hours with them?
A. It was a supervised visit, yes.
Q. Okay. And there were no problems there, correct?
Q. And by your account, he was bothering you at work?
A. Sorry, ask the question again.
Q. By your account, he was bothering you?
Q. Okay. I’m going to suggest to you, ma’am, that you’ve made up these allegations to gain leverage in the family proceedings?
A. I disagree.
Q. A copy of Mr. Shane’s–sorry, Mr. Sutton’s bail, did you provide a copy of that to the kids’ school principal?
A. Yes, I did.
Q. Why did you do that?
A. That was under the advisement of the Victim Services of Peel because there are restrictions–there were– there were restrictions with him–as–as you pointed out, line six. I was advised to inform the schools of the situation.
Q. I’m sorry, which line are you talking about?
A. Access to your children, line six, “Access to your children to be arranged through a mutually to third party.”
Q. Oh, I see. Okay. But you could have…
A. And it was…
Q. …just told them that….
A. …advised–it was advised by Victim Services of Peel to notify the schools of the situation.
Q. To notify the schools?
Q. They didn’t say provide a copy of the bail to the schools?
A. They wanted a copy. When I went and explained the situation, they asked if there was anything in writing, and I provided them with the bail–the bail…
Q. Okay. Well, I’m…
Q. …going to suggest to you, ma’am, you provided them the bail because you specifically wanted them to know that Mr. Sutton was charged with these offences?
A. I specifically gave that information to the schools to protect the children.
MR. PAIN: Okay. Those are my questions, Your Honour.
THE COURT: Re-exam?
MS. GREEN: Just a few follow up questions..
RE-EXAMINATION BY MS. GREEN:
Q. My friend had asked you about that paragraph 23 in your affidavit?
Q. And it concludes with, “I have grave concerns for the safety of the children if they are in the company of the respondent.” The respondent being Mr. Sutton, right?
Q. Why did you say that?
A. Because the situation that was–I saw that–when we were living together and I saw the state that my ex-husband was in when we were discussing our issues, it–I was unsure of what he was willing to do to–to keep the marriage together. And the children were very afraid of him and afraid of the situation. And I felt that–I didn’t know what, you know, I was just concerned for the kids in his–while they were in his company.
Q. Since the time he was arrested on August 15th, have there been any problems?
A. Problems with?
Q. Between you and Mr. Sutton?
A. Well, I mean–can you be a bit more–can you be a bit more specific? How do you mean, problems?
Q. Have you had problems similar to what you were testifying to today about? Have you had any problems like that since August 15th and the bail conditions have been in place?
THE COURT: That’s not re-exam.
MS. GREEN: I’ll withdraw the question.
THE COURT: All right. You may step down. Thank you.
MR. PAIN: Your Honour, perhaps I should ask that this document be marked as an exhibit, as well. The–the affidavit I put to the witness.
THE COURT: All right. It’s been identified.’ Any objections to that?
MS. Green: No.
THE COURT: All right. Next exhibit.
EXHIBIT NUMBER 7: Affidavit sworn on August 23rd -Produced and Marked.
MS. GREEN: Your Honour, I’m going to ask for five minutes to speak with the officer outside, to have a conversation with the witness, and assess the state of the case at this point.
THE COURT: Thanks very much.
MS. GREEN: You’re welcome. Is–is that okay that I take the five minutes?
THE COURT: Take as much time as you want.
MS. GREEN: Thank you.
COURTROOM CLERK: Ms. Sutton, please return to courtroom 203. Ms. Sutton, please return to courtroom 203.
MS. GREEN: Thank you very much for the indulgence, Your Honour. I had an opportunity to speak with Ms. Sutton and, essentially, asked her the same questions that I had tried to ask in court, whether or not there was any further contact. Having received the answers that I have, and having conversations with her, I’m going to ask for leave to withdraw the charge. What I am suggesting though, is a–given the evidence that’s been before the court–suggesting a common law peace bond, with the only condition being on it that he’s not to have contact with Ms. Sutton, except for family law proceedings and with respect to access and child care issues.
THE COURT: Well, I….
MS. GREEN: I suppose those are two requests lumped…
THE COURT: …I’m not going…
MS. GREEN: …into one.
THE COURT: …to order the bond, Mr. Pain. But am going to simply indicate that that is a clear statement, not only from her in court today, and that’s one area, I think, I can pretty much accept what she’s had to say. And, Ms. Green, being an officer of this court, has made it pretty clear on the record, too. So one would have to be incredibly foolish to do anything else. Are you agreed?
MR. PAIN: I–I agree–I agree, Your Honour.
THE COURT: Just to make sure that you understand, Mr. Sutton, she’s indicating that she doesn’t want any contact at all from you. I am saying approximately what police would say if they showed up, if somebody issued a complaint with regard to too much contact, they would say, this person doesn’t want to hear from you. What I’m going to say is sort of what the police would say, that is, the only contact she wants is through counsel or pursuant to family court Order with regard to access. What was the other thing you mentioned? Something about….
MS. GREEN: Family law proceedings. And it seems that they’ll need to have contact for that.
THE COURT: Only through lawyers.
MS. GREEN: I just wouldn’t want to put anybody in an advertent breach when they were attending court, if necessary, if they need to send documents….
THE COURT: With regard to access. And it would be absolutely, and Mr. Pain will give you more information on this, it would really wise to do that through a–a third party, not directly. I mean, I’m certainly, I think, any police officer would say, don’t have any contact at all. That being said, the reason why I didn’t order a family court order is because Ms. Green has read me well and, that, that I didn’t believe much of what I heard this morning. I–I–I’m just going to leave it at that, because she’s asked leave to withdraw. And I’ve granted it, so it would be inappropriate for me to say more than that. And–but that’s my explanation for not granting the common law peace bond, although it was a very reasonable request from a very reasonable Crown Attorney. I didn’t order it because I’m certainly very conversant with family law, and while Mr. Pain has raised many issues this morning that relate to the bigger proceeding and whether these matters before me today are, essentially, an abuse of the court’s process to gain advantages prior to trial and at trial, he hasn’t raised, nor does he need to, the fact that even a common law peace bond can be part of that evidence that’s thrown into the balance in the bigger proceeding in Superior Court. So I’ll simply indicate that I wasn’t going to order the bond, but that I have indicated to you that there should be no contact other than with regard to access. And even that —or–and–and through your lawyers, but even that contact or access should be through a third party. Any questions at all about anything I’ve said?
MR. SUTTON: Can I speak freely?
MR. PAIN: Yeah.
THE COURT: Sorry? Sorry?
MR. SUTTON: I –I said, can I speak freely, or
MR. PAIN: I’ll–I’ll explain to him
THE COURT: I don’t think it would be wise. I’ve heard enough speaking freely today. I know people– I should say, to be fair, people are never at their best in family law proceedings. It’s an incredible strain, and people are never at their best. But you don’t need to persuade me to disregard the evidence. I’ve indicated that I did. And I’m not going to order the bond. But anybody has the right to say to any other person, I want no contact with you. Even mothers have the right to say that to their children, for example, and that sometimes happens. Any person can say no contact, even the mother of your children who has custody of them at the moment. Because, of course, I’ve permitted you to have contact through your lawyers or through a third party with regard to access, okay? If you speak to Mr. Pain, though, and he thinks that I should, if what you wanted to speak freely about is something that I should get some feedback on, go right ahead. So you guys whisper together. But if you have any questions, give them to me now.
MR. PAIN: No questions, Your Honour. His questions are related to the family law proceedings and I’ll speak to him about that.
THE COURT: Oh, yeah. I don’t give family law advice anymore. Alright. Thanks very much. Appreciate it Mr. Pain. Ms.Green, appreciated very much. Small star beside that. Thank you very much.
MS. GREEN: You’re welcome.
MR. PAIN: Thank you, Your Honour. I thank my friend.
THE COURT: All right. This matter is dismissed.
WHEREUPON THESE PROCEEDINGS WERE CONCLUDED