R. v. Crossley

2023 BCSC 2382 R. v. Crossley

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Crossley, 2023 BCSC 2382 Date: 20230919 Docket: X083803-5 Registry: New Westminster Rex v. Ryan Ross Crossley Before: The Honourable Justice Mayer Oral Reasons for Judgment Re: admissibility of Curtis Crossley's guilty plea Counsel for the Crown: R. Flannigan J.N.A. Gock Counsel for the Accused: S. Wright A. Willox Place and Date of Trial/Hearing: New Westminster, B.C. September 11-15 and 18-19, 2023 Place and Date of Judgment: New Westminster, B.C. September 19, 2023 [1] THE COURT: These are my reasons in respect of the application by the defendant to put evidence before the jury concerning the guilty plea of Curtis Crossley. [2] On November 19, 2021, Robert Powshuk was stabbed to death, it is alleged, in front of a building located at 680 Clarkson Street in New Westminster. Both Ryan Crossley and Curtis Crossley were charged with second degree murder under the same indictment dated May 19, 2021. On August 29, 2023, Curtis Crossley pled guilty to manslaughter in respect of the death of Mr. Powshuk. Ryan Crossley remains a defendant under a new indictment dated September 5, 2023. [3] In this application, Ryan Crossley seeks an order allowing him to present evidence to the jury of the guilty plea of Curtis Crossley. The Crown opposes this application on the basis that Curtis Crossley's guilty plea is irrelevant and,

further, if this information is provided to the jury, it may lead to unfounded speculation and reasoning prejudice with respect to the basis of Curtis Crossley's plea. [4] Both parties agree that, in general, the Crown is not entitled to lead evidence of a co‑accused's guilty plea, but the defence should be given more latitude in this area: reference is R. v. Caesar, 2016 ONCA 599 and R. v. Shire, 2023 ONSC 553. The question of whether another individual's plea on related charges may be admitted is not subject to a hard‑and‑fast rule. The analysis is rather case‑specific: reference is R. v. McMorris, 2020 ONCA 844. [5] Even though a co‑accused's guilty plea may be admissible as a public or judicial record, and pursuant to s. 23 of the Canada Evidence Act, R.S.C. 1985, c. C‑5, the court retains the discretion to exclude such evidence where its admission would render the trial unfair or if its prejudicial effect substantially outweighs its probative value: the reference for that is Caesar and Shire. [6] Ryan Crossley submits that given Curtis Crossley's role in the events leading to Mr. Powshuk's death is readily apparent in video evidence before the jury, for example, in which he is seen holding a knife at times, that the jury will be left to speculate if they are not told that Curtis Crossley has pled guilty to manslaughter. In particular, he submits that if they are not

informed of Curtis Crossley's guilty plea, the jury may speculate that only Ryan Crossley is responsible for the death of Mr. Powshuk and not Curtis Crossley. He submits that the jury can be provided with a limiting instruction concerning the use of his plea with respect to the issue of his guilt or innocence. [7] The Crown submits that evidence of Curtis Crossley's plea on its own is not relevant. They say that there is no evidence from the accused or from video evidence, and the defence has confirmed that they do not intend to call such evidence, that Curtis Crossley stabbed Mr. Powshuk. [8] The Crown contends that the admission of the fact of Curtis Crossley's guilty plea to manslaughter would be misleading and may result in reasoning prejudice by the jury, resulting from the jury not understanding the reasons that Curtis Crossley entered a plea of manslaughter. Further, the jury may conclude that if Curtis Crossley is guilty of manslaughter, then Ryan Crossley must not be guilty of second degree murder or at most only guilty of manslaughter. [9] In the cases primarily relied upon by Ryan Crossley, Caesar and Shire, both accused testified at trial. That is not the case here. Further, in the case of Ms. Caesar, who was charged with drug importation, the court noted that the guilty plea of Mr. Anderson was relevant to the defence theory of the case which Ms. Caesar had

testified to, which was that Mr. Anderson was responsible for the drug importation and she was acting as, in my words, just a mule. Evidence of the guilty plea of Mr. Anderson was admitted or was found to be admissible in that case. [10] In Shire, the accused testified that he had not participated in the stabbing. The accused contended that the fact of the guilty plea by the co‑accused was some evidence which supported his testimony and therefore credibility. It was not disputed that the co‑accused had also participated in the stabbing at issue. Evidence of the co‑accused's guilty plea was admitted on condition that a limiting instruction be provided to the jury with respect to the use of such evidence. [11] As I have said already, I believe, defence counsel has confirmed that Ryan Crossley will not be calling any evidence at trial. Accordingly, unlike the circumstances in Shire and Caesar, he does not point and does not seek to point the finger at another individual, in this case this would potentially be his brother Curtis, which would make the fact of Curtis' plea potentially relevant. [12] Ultimately, I see no valid reason for advising the jury of the guilty plea of Curtis Crossley. I agree with the submissions of the Crown that providing the jury with this information may result in speculation from the jury with respect to the basis of Curtis Crossley's plea and,

therefore, result in reasoning prejudice in respect of the charges against Ryan Crossley. For example, the jury may assume that, as a result of the plea, that Curtis Crossley stabbed Mr. Powshuk during a 40‑second gap in the relevant video recording when neither he, Ryan Crossley, or Mr. Powshuk were visible, or that since Curtis Crossley pled guilty to manslaughter, Ryan Crossley should only be found guilty of this offence. [13] As a result, Ryan Crossley's application to adduce this evidence is dismissed on the basis of both relevance and fairness. [14] Now, any concerns that remain in the absence of being advised that Curtis Crossley pled guilty to manslaughter, that the jury will speculate as to his role in the events in issue can be alleviated with an instruction from this Court. I intend to instruct the jury that they should consider the evidence before them and only this evidence, and should not give any consideration to or speculate on Curtis Crossley's status before the courts in respect of the matters, which are the subject of this prosecution. [15] At the appropriate time, I am quite happy to receive suggested instructions if Crown or defence wish to provide them. I invite them to do so when we review my draft charge to the jury. "Mayer J."