R. v. Turner Date:, 2015 BCPC 294

Citation: R. v. Turner Date: 20150901 2015 BCPC 0294 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DREW GORDON TURNER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: D.A. Drissell Counsel for the Defendant: J.W. Green Place of Hearing: Nelson , B.C. Dates of Hearing: July 15, 16 and 17, 2015 Date of Judgment: 1 September, 2015

[1] Constable Drew Turner, the accused, is charged with assaulting Tawny Campbell in Nelson, British Columbia on May 1, 2014.Ms. Campbell was drunk, and was resisting the attempts of Constable Andreaschuk to place her under arrest. Constable Turner, who wasoff duty at the time, happened to see the two of them struggling. Constable Turner came to Constable Andreaschuk's assistance. In thecourse of a rapidly unfolding and volatile incident, Constable Turner punched Ms. Campbell in the face with great force, and knockedher unconscious. [2] Constable Turner does not dispute that he assaulted Ms.

Campbell, but does say that the force used was justified because hewas effecting a lawful arrest on reasonable and probable grounds, and used only as much force as was necessary. [3] This case raises several issues. They include justification as defined in

section 25 of the Criminal Code, the credibility ofvarious witnesses, and the application of the doctrine of reasonable doubt. [4] What follows is a review the applicable law before the evidence is considered and the necessary findings of fact are made. APPLICABLE LAW Justification for the Use of Force [5] Section 25 (1) provides a defence to those who are required or authorized by law to use force while engaged in theadministration or enforcement of the law. The relevant parts of that

section say: 25(1) Everyone who is required or authorized by law to do anything in the administration and enforcement of the law … (

b) as a peace officer or public officer, (or) (

c) in aid of a peace officer or public officer … is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessaryfor that purpose. [6] The availability of the justification is limited by section 25(3) of the Criminal Code, which says that, subject to certain furtherexceptions, a person is not justified in using force that is intended or is likely to cause death or grievous bodily harm unless the personbelieves on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of anyone under thatperson's protection from death or grievous bodily harm. [7] In R. v.

Nasogaluak, 2010 SCC 6 , LeBel J. for the Court explained the operation of

section 25. At paragraph 34, hesaid: [34] Section 25 (1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or sheacted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. This is not the end of thematter.

Section 25 (3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to causedeath or grievous bodily harm, unless he or she believes that it is necessary to protect him or herself, or another person under his or herprotection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of forceunder section 25 (3) is to be judged on a subjective-objective basis.

If force of that degree is used to prevent a suspect from fleeing toavoid a lawful arrest, then it is justified under section 25 (4), subject to the limitations described above and to the requirement that theflight could not reasonably have been prevented in a less violent manner. [8] In Chartier v. Greaves, [2001] O.J. No. 634 (O.S.C.J.), a civil case, the court considered a claim for wrongful death against anumber of police officers. The court considered the justification in

section 25 of the Criminal Code, and said at paragraph 24, Three conditions, therefore, must be met before a police officer can qualify for the statutory protection: 1) the police officer must be engaged in an activity that he/she is required or authorized by law to do in the administration orenforcement of the law; 2) the officer must act on reasonable grounds; and 3) the officer must use only as much force as is necessary. [9] Police officers engage in dangerous and demanding work, and often have to react quickly to emergencies. They cannot beexpected to measure the force used with exactitude.

The court should judge their actions in the light of the circumstances, as existing atthe time the police officer used the force in question. In deciding what is reasonable, the court should take into account the policeofficer’s training and experience. The question is whether the police officer had a reasonable belief that it was necessary to use the

degree of force used, and whether a reasonable person in the same circumstances would find that belief to be reasonable. [10] Grievous bodily harm does not mean any injury. It means a serious injury or serious pain. Credibility [11] Many features of the law with respect to credibility appear to be beyond question. First, credibility is a question of fact. Second,all witnesses are credible until found not to be credible. All evidence, until shaken, is entitled to weight.

Third, the testimony of eachwitness must be considered in the light of the whole of the evidence in determining whether to accept or reject all, part or none of thatwitness' testimony. [12] The courts have found a number of factors to be helpful when considering the credibility of witnesses. Those factors include: a. The ability of the witness to observe an event, record it in his or her memory, and then recall and describe the event accurately. b. The external consistency of the evidence: is the testimony consistent with other independent evidence that is accepted? c.

The internal consistency of the evidence: does the witness give different versions of the same event during the course of the witness'testimony during the trial? d. The existence of prior inconsistent statements. e. The general reasonableness of the evidence of the witness: when measured against what seems like common sense, does the evidenceof the witness seem unlikely or does it make sense? f. The existence of a motive to lie or mislead, including any bias, prejudice or potential advantage.

This is not a factor to be applied inassessing the evidence of the accused in a case like this, because to do so would be to presume that he was guilty. g. The demeanor of the witness, although it is not a question of who is the best actor in the witness box. Was the witness evasive orforthcoming, belligerent or cooperative, defensive or neutral?

Reasonable doubt [13] The presumption of innocence requires that an accused not be convicted unless each essential element of the offence has beenproven beyond a reasonable doubt, and in addition, where there is an evidentiary foundation for a defence or justification, that defence orjustification has been disproved beyond a reasonable doubt. [14] In a case like this, where credibility is important, it is important to remember that the doctrine of reasonable doubt applies to thatissue. In accordance with the ruling of the Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 at 757,if I believe evidence raising a defence or justification, or negating an essential element of the offence, I must acquit. If I do not believeevidence raising a defence or justification or negating an essential element of the offence, but if I am left in reasonable doubt by it, I mustacquit. Finally, even if I am not left in doubt by evidence raising a defence or justification, or negating an essential element of theoffence, I must ask myself whether, based on the evidence I do accept, I am convinced beyond a reasonable doubt of the accused's guilt. [15] In R. v.

C.W.H., , Wood J.A., as he was at that time, added a caution to cover an additional possibility. Hesaid that if, after a careful consideration of all of the evidence, I was unable to decide whom to believe, I should find the accused notguilty. FACTS [16] On May 1, 2014 at about 2:19 PM Constable Andreaschuk received a report of a female walking or running in and out of trafficnear what is known as the Big Orange Bridge, across the West Arm of Kootenay Lake, in Nelson BC.

He was on patrol, alone, in amarked police truck with an extended cab. [17] He was driving towards the bridge in response to the report, when Ms. Campbell ran in front of his truck, waving her arms. Shewas in an obvious state of intoxication. She was having difficulty walking and was slurring her words. [18] Ms. Campbell testified, but had little or no recollection of the incident. Ms. Campbell is 5'5", and weighed about 107 pounds onMay 1, 2014. [19] Constable Andreaschuk told Ms. Campbell that she was under arrest for being drunk in a public place. Constable Andreaschukhad had prior dealings with Ms.

Campbell, and knew that although she was a relatively small woman, she was extremely volatile whenshe had been drinking. She struggled against his attempt to arrest her, and he tried to lift and push her into the back seat of the policetruck. [20] The back seat of that particular police truck featured a hard plastic seat, separated by a narrow foot well from a plastic screencalled a silent patrolman, which separated the passenger compartment from the driver's compartment of the truck. Ms.

Campbell waspushed into the passenger compartment so that her buttocks were wedged into the narrow foot well, with her legs from about the kneedown hanging outside of the passenger compartment. [21] Constable Andreaschuk used his radio to request the assistance of other police officers on duty. Acting Sgt. Slomba andDetective Constable Lang received the radio call as they were sitting down to lunch. They left the table, and drove in their police vehicletowards the bridge. About half way to the bridge, they received a second radio report from Constable Andreaschuk. In response to that

second report, they used the lights and siren and increased their speed. [ 22 ] At the same time, Constable Turner was off-duty. He was driving his personal motor vehicle to pick up his younger daughter from her day-care. His older daughter and his mother-in-law, who was visiting Nelson, were in the vehicle with him. The route to the day-care took Constable Turner towards the bridge. He saw the flashing lights on Constable Andreaschuk's truck, and quickly parked his vehicle on Kokanee Street, about half a block from where Constable Andreaschuck and Ms.

Campbell were struggling. [ 23 ] Constable Turner was 6'2" and weighed 225 pounds. [ 24 ] The witnesses gave different testimony about exactly what happened in the following two or three minutes. [ 25 ] Constable Turner testified that he ran from his vehicle to the police truck. While he was running, he saw the woman kick Constable Andreaschuk in the groin. When he arrived on the left side of Constable Andreaschuk, Andreaschuk took a fraction of a second to recognize Turner in his civilian clothing, and then told him, "This is Tawny.

She’s a biter, she’s a spitter, and she will fight you." [ 26 ] According to Constable Turner, Ms. Campbell was basically sitting in the foot well. She was trying to get out, and yelling and screaming at the officers. Constable Turner grabbed Ms. Campbell by the right arm, and noted how strong she was. Constable Turner testified that he told her not to kick him and not to spit at him, and that he might have told her to get up in the seat. [ 27 ] While Constable Turner continued to struggle with Ms.

Campbell at the right rear passenger door of the truck, Constable Andreaschuk went around to the other side and opened the other door. Constable Turner testified that, as soon as Constable Andreaschuk opened the door on the far side of the pickup, he levered Ms. Campbell's right arm across the vehicle so that Constable Andreaschuk could attach a set of handcuffs to her right wrist. Constable Turner then secured the handcuffs to Ms. Campbell's left wrist, so that both of her hands were now cuffed in front of her. Ms.

Campbell was still wedged into the foot well of the passenger compartment of the truck, with her upper body canted away from Constable Turner and her lower legs pinned against the body of the truck by Constable Turner's shin. [ 28 ] At this point, according to his testimony, Constable Turner was not aware that Acting Sgt. Slomba and Detective Constable Lang had arrived at the incident. He said he did not hear the sirens.

He denied that Slomba had touched him on the shoulder, and said that Slomba had made up that part of his evidence. [ 29 ] Constable Turner testified that he was standing upright, about 1 1/2 feet from Ms. Campbell. Her hands were cuffed in front of her, and her hands were held at about chest level. She continued to be very loud and extremely uncooperative. [ 30 ] Constable Turner testified that at this point he "gave her a little whack on the head".

He testified that he targeted her head because he wanted to get her out of the mind-set that she was in, and because he did not want to hit or push her on the chest, for fear of being accused of sexual assault. He agreed that he was trained to use open hand force, but that Ms. Campbell gave him no choice. [ 31 ] He said that she managed to grab him by his T-shirt with her right hand, and then pull him toward her. He said that she went silent for a split second, and the pupils of her eyes widened. He feared that she was about to bite or head-butt him, and so he struck her in the nose with his fist.

He believed he had no other options, because there was very little distance between them. He did not think that he said anything to her prior to the second blow, but he thought that just before he punched her he heard someone say, "Drew, no!" [ 32 ] Constable Turner said that Ms. Campbell's head snapped back, and that blood flowed from her nose or upper lip. She lost consciousness, and he counted about 5 to 8 seconds before she started breathing.

He said that when she started gurgling, he thought to himself, "Thank God." [ 33 ] Constable Turner said that, after he struck the second blow and realized that Acting Sgt. Slomba and Detective Constable Lang were at the scene but had not assisted him, he said "I’ve had enough of this fucking shit" as he was walking away. [ 34 ] Constable Andreaschuk's evidence with respect to the handcuffing and the blows is consistent with Constable Turner's in some regards, but inconsistent in others. Constable Andreaschuk testified that he told Constable Turner that Ms.

Campbell was a biter and a spitter, and that she would fight him. He agreed that, after Constable Turner arrived to assist him, he ran to the far side of the pickup truck, and put the handcuffs on Ms. Campbell's right wrist. He saw Constable Turner put the handcuffs on Ms. Campbell's other wrist, so that both of her hands were cuffed in front of her. [ 35 ] Unlike Constable Turner, though, Constable Andreaschuk saw Acting Sgt. Slomba and Detective Constable Lang arrive at the scene. Constable Andreaschuk testified that the first blow struck by Constable Turner was a blow to Ms. Campbell's chest.

Constable Andreaschuk said that after the first blow and before the second, it was possible that Ms. Campbell had grabbed Constable Turner by the T-shirt. Constable Andreaschuk testified that he heard Constable Turner utter words to the effect that he was sick of this stuff after the first blow, but before the second. [ 36 ] After the blows had been struck, Constable Andreaschuk denied telling Slomba and Lang that Ms. Campbell was going to bite Constable Turner. He testified that he removed Ms. Campbell from the footwell of the police truck. [ 37 ] Acting Sgt.

Slomba's evidence with respect to the handcuffing and the blows is different in material ways from Constable Turner's evidence, and is different in one way from Constable Andreaschuk's evidence as well. [ 38 ] Acting Sgt. Slomba testified that he arrived beside Constable Turner, as Constable Andreaschuk was running around the vehicle to the door on the far side. Slomba testified that he could see Tawny Campbell wedged between the rear seat and the silent patrolmen, close to the floor. In his view, she was in the most vulnerable position she could be in.

He did not recognize the man in civilian clothes standing in front of her. He went to the right side of the man, between the man and the open back door. He tapped the man on the shoulder, and said, "It is okay, I’ve got this." A few seconds later, when the man did not respond, Acting Sgt. Slomba repeated, "I’ve got

this." At that point, Acting Sgt. Slomba testified that he recognized Constable Turner. [ 39 ] Acting Sgt. Slomba moved around behind Constable Turner to a position on Turner's left side. He said that Ms. Campbell was yelling, crying and very emotional. Both of her hands were cuffed in front of her. He heard Constable Turner tell her to shut up, and then within two seconds Constable Turner punched her in the right upper chest. Ms. Campbell cried out, and became even more upset after the first blow. [ 40 ] According to Acting Sgt. Slomba, Constable Turner told Ms.

Campbell, "I said shut up" and then struck her in the face with tremendous force. Her head snapped back, and her nose started bleeding. He thought it looked like she had a broken nose. She was unconscious for about 15 or 20 seconds, and when Acting Sgt. Slomba could not hear her breathing he was momentarily concerned that she was dead. [ 41 ] After the second blow, Acting Sgt. Slomba said that Constable Turner remarked, "That will shut her up." Slomba said Turner said he was going to go and wash his hands. He said he told Constable Turner to go home. [ 42 ] Acting Sgt. Slomba testified that he did not see Ms.

Campbell grab Constable Turner by the t-shirt, and he did not see her try to bite or head-butt him. He did not hear Constable Turner say, "I’m sick of this shit” before the second blow. He did not say, "Drew, no." He said that he and Detective Constable Lang took Ms. Campbell out of the back of the vehicle. [ 43 ] The evidence of Detective Constable Lang, the fourth of the four officers at the scene when the blows were struck, is consistent in most respects with the evidence of Acting Sgt. Slomba.

Detective Constable Lang testified that they arrived and saw a combative female in the back of Constable Andreaschuk's truck, screaming and flailing. Ms. Campbell was wedged between the seat and the silent patrolmen, with her upper body angled back toward the far side of the vehicle. [ 44 ] Detective Constable Lang went to the other side of the vehicle, where Constable Andreaschuk was. He observed what happened from behind Constable Andreaschuk. He said the situation was chaotic. [ 45 ] He said that he heard Slomba say "I’ve got this, Drew" several times.

He recalled seeing Slomba's hand on Turner's back, as they jockeyed for position at the open door. [ 46 ] Detective Constable Lang said that Turner was focused on the situation at hand. In chief, Lang did not recall Turner saying, "shut up" but thought that he probably did. Lang thought that they all probably told her to shut up. In cross, he recalled Constable Turner saying shut up twice.

Prior to the blow, he said he heard Constable Turner use the phrase shut up with expletives, and after the blow he heard Constable Turner say, "that will shut her up" before Turner walked away to wash his hands. [ 47 ] Detective Constable Lang testified that he did not see Ms. Campbell do anything to Constable Turner, although at the time of the blow he could not see her hands. Unlike the other witnesses, Lang only saw one punch. Like Slomba, Detective Constable Lang thought the blow might have killed her. [ 48 ] After Constable Turner left the scene, he returned to his private residence.

He became concerned that a cut he suffered on his finger might become infected if Ms. Campbell carried any infectious diseases, and he called the police dispatcher to ask if police records indicate whether she did. A recording of that conversation was entered into evidence. A portion of the conversation went as follows: Turner: Well what, what the hell was she doing? Dispatcher: Sorry? Turner: What the hell was she doing? Dispatcher: She was hammered. Staggering around in traffic. Turner: Oh. Well, she’s got a broken nose now. Dispatcher: Sweet. Did you break it? Turner: Yeah. Dispatcher: Nice. Okay.

Just hang on one sec. Short Pause Turner: Is she like a local crazy? I, I’ve never dealt with her. Dispatcher: Oh she’s been here quite some time. She’s, like a really bad drunk. Turner: Oh. Yeah, I’ve never dealt with her. Dispatcher: And she’s had some, you know, just some really bad episodes. Like she’s fought everybody all the time. Turner: Yeah well, that might change. Dispatcher: Yeah. Turner: Just putting that out there.

[ 49 ] Constable Turner snickered when he suggested that a broken nose might change Ms. Campbell's behavior. In cross-examination, he explained this by saying that he was laughing at Acting Sgt. Slomba and Detective Constable Lang, although they were not referred to in this part of the conversation with the dispatcher. ANALYSIS [ 50 ] Consideration of the evidence of the four police officers present during the arrest of Ms.

Campbell provides a good illustration of the degree to which sudden violent and chaotic events test the ability of witnesses to record events in their memory, and then accurately recall and describe them after a period of time has passed. For example, Constable Andreaschuk believed that he helped Ms. Campbell out of the vehicle. Acting Sgt. Slomba thought that he and Detective Constable Lang helped her out. Another example is Detective Constable Lang's evidence that Constable Turner struck Ms. Campbell once, which differs from the evidence of the other three officers.

A third example is whether Constable Turner said, "I’m sick of this shit" or “I’m sick of this fucking shit." Constable Andreaschuk believed he had said words to that effect after the first blow and before the second one. Constable Turner said that he said those words as he was walking away from the scene. Acting Sgt. Slomba and Detective Constable Lang did not hear him say those words at all. [ 51 ] However, I find the following evidence credible and I accept it: a. Ms. Campbell was handcuffed and restrained in a vulnerable position in the back of a police vehicle. b. Constable Turner was twice her size. c.

Constable Turner did not follow the use of force training he had received, which would have called for blows delivered with an open hand rather than the punches he delivered to Ms. Campbell. d. Acting Sgt. Slomba and Detective Constable Lang had arrived and were in a position to support Constable Turner before he delivered the first punch to Ms. Campbell. I accept that Constable Andreaschuk had seen and heard them arrive. e. Acting Sgt. Slomba touched Constable Turner on the shoulder once, and told him, "I’ve got this" twice, before Constable Turner delivered the first blow.

I accept this fact because Detective Constable Lang corroborates his evidence on this point, and because it seems like reasonable conduct on the part of police officer who sees someone he believes to be a civilian engaged in making an arrest, and because I can find no reason in the evidence for Acting Sgt. Slomba and Detective Constable Lang to lie about this point. f. Constable Turner knew that Slomba and Lang were in a position to support him. The sound of their siren and the flashing lights, the sounds of their voices and the touch on his shoulder must have made him aware of their presence.

In his evidence, Constable Turner did not testify that he was unaware of their presence. Constable Turner asserted that Acting Sgt. Slomba had made this up, and by implication that Detective Constable Lang was lying as well. In the absence of any reason for them to lie, Constable Turner's denial that they were present makes no sense to me. g. Ms. Campbell did not grab Constable Turner's T-shirt with her right hand, and did not threaten to bite or head-butt him. Constable Andreaschuk, Detective Constable Lang and Auxiliary Sgt. Slomba were all focused intently on the task of bringing Ms. Campbell under control.

All three were in relatively good positions to observe what was happening, from three different perspectives. Not one of the three saw Ms. Campbell grab the T-shirt, or make any movement consistent with a head-butt or an attempt to bite Constable Turner. h. Constable Turner said, "That will shut her up" as he walked away from the police vehicle. I find this because Detective Constable Lang and Acting Sgt. Slomba both testified that they heard him. Even more significantly, the statement is very similar in meaning and tone to the statement made by Turner to the dispatcher very shortly after the incident.

The statement to the dispatcher, of course, was tape-recorded. [ 52 ] On the basis of those facts, I am not able to believe Constable Turner’s evidence about the necessity of using the degree of force he used, and I am not left in a reasonable doubt by it. The remaining question is, based on the evidence I do accept, whether the Crown has proven each essential element of the offence beyond a reasonable doubt, and in addition, whether the justification provided in

section 25 of the Criminal Code has been disproven beyond reasonable doubt? [ 53 ] The evidence establishes beyond a reasonable doubt that Constable Turner applied force to Ms. Campbell without her consent. In addition to that, the Crown has established all of the other elements of the crime of assault. [ 54 ] Given what he saw as he ran towards Constable Andreaschuk’s truck, Constable Turner had reasonable grounds to believe she was committing an indictable offence. Constable Turner was authorized by law to arrest Ms. Campbell. [ 55 ] However, Constable Turner will be denied the justification provided in

section 25 , if he used more force than was necessary to arrest of Ms. Campbell. I find that, even after making allowances for the difficulty of the situation created by Ms. Campbell’s behaviour, striking her in the head while she was in a vulnerable position with sufficient force that her nose was broken and she was knocked unconscious was more force than was necessary. [ 56 ] If I am wrong about that, I would find that the force and target of the second blow were such that it was likely to cause grievous harm as defined in section 25 (3) of the Criminal Code .

I would find as well that Constable Turner did not have a reasonable belief that such a degree of force was necessary, either subjectively or objectively, for his preservation or for the preservation of anyone else. [ 57 ] It follows that I find Constable Turner guilty of assault.

__________________________________ Richard Hewson, PCJ