2012 QCCA 889, 2012 QCCA 889

R. c. Tutino 2012 QCCA 889 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004849-111 ( 500-01-023224-097 ) MINUTES OF THE HEARING DATE: May 10, 2012 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. RICHARD WAGNER, J.A. JACQUES R. FOURNIER, J.A. APPELLANT ATTORNEY(

S) HER MAJESTY THE QUEEN Mtre Dennis Galiatsatos CRIMINAL AND PENAL PROSECUTING ATTORNEY RESPONDENT ATTORNEY(

S) FRANCESCO TUTINO Mtre Maude Pagé-Arpin LABELLE, BOUDRAULT, CÔTÉ & ASSOCIÉS

On appeal from a judgment rendered on January 14, 2011 by the Honourable Judge Isabelle Rheault of the Court of Quebec, District of Montreal NATURE OF THE APPEAL : Acquittal – uttering threats and assault Clerk: Marcelle Desmarais Court Room: Rc-14 HEARING 9 h 37 Mtre Maude Pagé-Arpin asks the Court to require that the hearing be conducted in French.

The request is denied, as the Court has no constitutional authority to impose the use of a particular language to be used by counsel pleading an appeal. 9 h 37 Mtre Galiatsatos advises the Court he will begin to plead in English and later, he will plead in French. 9 h 39 Submission by Mtre Dennis Galiatsatos. 9 h 45 Submission by Mtre Maude Pagé-Arpin. 10 h 05 Reply by Mtre Dennis Galiatsatos 10 h 05 End of argument. 10 h 05 Suspension. 10 h 08 Resumption. BY THE COURT: Judgment – see page 3. Marcelle Desmarais Court Clerk BY THE COURT JUDGMENT

[ 1 ] The Crown appeals the verdicts of acquittal entered by the trial judge on two counts of uttering death threats [paragraph 264.1(1)(

a) Cr. C .] and one count of simple assault [section 266(

a) Cr. C .]. The charges relate to an incident that occurred in the Jolicoeur subway station involving two patrol officers and the respondent. The only testimony heard was that of the two officers and the respondent. [ 2 ] At the time of the events, Lieutenant Maxime Gamelin and Officer Guillermo Ernesto Santos Martinez were two young patrol officers from the Société de transport de Montréal . On May 8 , 2009, they were patrolling the Jolicoeur subway station together.

Around 9:05 pm, they saw a man in his late forties flip the subway turnstile with his hand and pass through without paying, thereby committing an offence requiring them to intervene. They both called out to the respondent and asked him to return. [ 3 ] From this point on, the testimony of the two officers is essentially the same. They state that the respondent returned, furious to have been caught, and aggressively kicked the metal fixture holding the turnstile. The officers then asked him to identify himself, a request that he refused on three occasions.

They described him as having been violent and to have screamed at them. He finally complied by giving his health insurance card. The officers also asked for his address, which is required to complete the statement of offence under the Code of Penal Procedure . [1] He answered " fuck you " in response to this request, and then complied, giving them a blue hospital card. The officers had reason to doubt the validity of the address on that card as it was dated and because of the respondent's belligerent attitude. They asked him to state his address, which he did, but it did not correspond to the one on the card.

Officer Martinez then asked him for the correct address. The respondent became agitated and pushed the officer on the chest with his right hand. Using a "joint hold" procedure, both officers then took him to the ground, face down, and proceeded to arrest him for assault on a public officer. They allege he was resisting, trying to flee. He was promptly handcuffed and searched for dangerous objects. The respondent then would have told the officers aggressively " If I see your face again, I'm going to kill you ".

Officer Martinez then immediately arrested him for uttering death threats, and repeated his rights to him. He replied: " I'm going to hit your face with a baseball bat ". They then sat him down against a wall and waited, standing by his side, for the Montreal police to arrive. [ 4 ] The respondent's testimony entirely contradicted that of the two officers on the relevant points in issue, although he admitted going over the turnstile without paying. He claims to have been quite passive and calm.

He told the officers "I'm sorry I done this…I rarely do stuff like this…Please let me go…I won't do it again", and asked them to let him go. The officers then would have started mocking him, which made him angry. [ 5 ] The respondent acknowledged an initial refusal to cooperate. He nevertheless denies there were any problems with his address. He denies pushing anyone, even less so with his right hand - of which all his fingers have been amputated. Then, "things got out of hand" and insults were exchanged on both sides.

He says that, having done nothing physical and having simply said " Look, leave me alone, I'm going to leave now ", the officers grabbed his arm, threw him on the floor and " roughed him up pretty good ". He contends that the officers treated him "like an animal" and threw him on the floor aggressively. Later, he hesitated about being "roughed up pretty good" and rather characterized it as being " a little too harsh ". [ 6 ] With respect to the alleged death threats, he claimed that the officers misinterpreted his words, when all he did was give them some advice.

He told them: "One day, you're going to bump into the wrong person and then you're going to get a beating". His purpose was never to intimidate them, rather it was to do them a favour or give them a warning. [ 7 ] The trial judge rendered her judgment orally. She began by affirming that the situation before her fell within the guidelines of the seminal case of R. v. W.(D.) . [2] She therefore began by explaining why she did not believe the respondent's testimony.

In a nutshell, she did not believe his assertions that he had been nice and polite, nor that his intent was to give the officers advice by telling them that next time they could have problems if they met someone who was not as nice as him. She underlined the contradictions between his initial statements about being polite, nice and merely giving counsel, and his admission that he was upset, angry and felt foolish to have been caught. [ 8 ] She then moved on to reference the Supreme Court cases of R. v. Clemente [3] and R. v.

McCraw [4] – and the guidance they provide in interpreting what constitutes death threats.

She said this: Basically, it says that "the meaning conveyed by the words is the important factor – I'm just going to sum up the jurisprudence – words spoken in such a manner have to be taken seriously, taken globally, and the test is whether a reasonable person would conclude from the words under the circumstances and the whole of the circumstances ". [ 9 ] She then concluded that given the context of the threats directed towards the two uniformed officers who were in a position of authority and force compared to the respondent, they could not have taken the threats seriously: From that point of view, I believe that considering the whole context of the arrest, that a reasonable person would not consider that those threats could have been serious just by the fact that they were told; the accused was facing two agents wearing uniforms, who were in a position of authority and who were in force concerning the accused, I don't think that this…if he said that, that it would have constituted real threats. [ 10 ] She therefore acquitted the respondent of the two counts of uttering threats. [ 11 ] With respect to the assault count, she once again referred to R. v.

W.(D). , and noted that if she did not believe the respondent, she had to nevertheless consider the whole of the evidence before finding him guilty. Despite not believing the respondent, who had denied pushing one of the officers in the chest, she expressed uncertainty as to what actually had happened and whether in fact the respondent pushed the officer or not. There were two diametrically opposite accounts, and she did not know which one to believe.

She therefore acquitted the respondent on the assault count as well. [ 12 ] The Crown argues that with respect to the uttering death threats counts, the trial judge did not properly consider the relevant factors mandated by the Supreme Court judgments in Clemente and McCraw . The principal message emerging from those two cases, as

they apply to the circumstances of this appeal, is that it is not sufficient for the words used to constitute a threat to bring about a conviction. Rather, the context in which the words were uttered, and the impact the words would have on the persons to whom they were directed, must be taken into account in assessing whether a criminal offence was committed. [ 13 ] In this instance, there is no doubt that the words the trial judge found to have been pronounced, if looked at in isolation from their context, would constitute a death threat or a threat to cause bodily harm. That, however, is not enough to engage the respondent's criminal liability. [ 14 ] Here, the trial judge did not render

section 264.1(1)(

a) Cr. C. inapplicable to suspects who are in the custody of police officers simply because the threat could not be carried out immediately. Instead, she analyzed the facts of the case, and found that the respondent had lost his self-control, resenting the way in which he had been treated for such a trivial infraction as not paying for his subway ticket, and who had uttered the impugned words in a state of frustration.

Moreover, the threats had not been uttered in a way that a reasonable person, in the same circumstances, would have objectively feared for his or life, nor had it been established that the respondent intended the patrol officers to take them seriously. [ 15 ] The Crown also argues that the trial judge seems to have required, in order for the offence to be committed under

section 264.1(1)(

a) Cr. C ., that the threat be so serious that it could have been carried out immediately. The Court does not derive that supposed requirement from the trial judge's reasoning. Rather, all the trial judge did was consider the general context in which the threats were made, namely the fact that the persons to whom the threats were directed were officers in a position of authority, and that the respondent was in custody when the threats were made.

This case is no precedent for the view that it is open season on uniformed officers to be recipients of death threats with impunity. [ 16 ] The acquittal on these two counts will therefore be affirmed. [ 17 ] Such will not be the case with the assault count. [ 18 ] There was consistent, uncontradicted evidence as to the circumstances that resulted in Officer Martinez being pushed in the chest. Moreover, it is clear that immediately after the assault occurred, the respondent was forcibly taken to the ground, handcuffed and placed under arrest.

There is no plausible explanation in the evidence that suggests any reason other than the assault for the two patrol officers to have acted in that fashion. Not having believed the denial of the respondent, the trial judge gave inadequate reasons for holding that there was a reasonable doubt under the third branch of the test in W.(D.) . That acquittal must therefore be set aside. [ 19 ] Since the Crown did not seek the substitution of a verdict of guilt but rather an order for a new trial on the assault count, judgment will be rendered accordingly.

FOR THESE REASONS, THE COURT: [ 20 ] DISMISSES the appeal insofar as it relates to the acquittal on the two counts of uttering death threats; [ 21 ] ALLOWS the appeal insofar as the acquittal on the assault count is concerned; [ 22 ] SETS ASIDE the verdict of acquittal on the assault count; [ 23 ] ORDERS a new trial on that count. ALLAN R. HILTON, J.A. RICHARD WAGNER, J.A. JACQUES R. FOURNIER, J.A.