2011 QCCQ 4145, 2011 QCCQ 4145

R. c. Turner 2011 QCCQ 4145 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF MISTISSINI Criminal Division NO: 640-01-018365-099 DATE: January 27, 2011 ______________________________________________________________________ BY THE HONOURABLE LUCILLE CHABOT, J.C.Q. ______________________________________________________________________ THE QUEEN v. RUSSEL TURNER ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Russel Turner is charged with six counts: assault under

section 266 of the Criminal code , forcible confinement under section 279

(2) b) of the Criminal code , and four counts related to firearms and ammunition. [ 2 ] The charges refer to an event that took place between Mr. Turner and Mrs. L.W., who was, at that time, his common law spouse. [ 3 ] On October 30, 2009, Mrs. W. and Mr. Turner were still living together with their four children, two of which are Mr. Turner's and two of which are theirs. [ 4 ] Two witnesses testified for the prosecution, Mrs. W. and Mr. Sylvain Proulx, a Mistissini police officer. For the defence, Mr. Turner gave his own version, which is contradictory to the complainant's version. Mrs. W.'s version: [ 5 ] Mrs.

W. and Mr. Turner were playing Radio Bingo. She says that while she had a glass of wine, Mr. Turner had Bacardi. She specifies that he was intoxicated. [ 6 ] As it was Halloween Eve, being a teacher, she prepared a cake for her students. They went to bed late. [ 7 ] Since they live in a two-bedroom house, the youngest child shares their bed. [ 8 ] The victim lies between the child and the accused. Mr. Turner wanted to have sex, but she refused. This refusal upset him. He grabbed her and held her down. While he was on top of her, she states that he pinched her in her genital area and bit her left arm.

The child awoke. Mr. Turner pulled Mrs. W.'s hair, turned her head toward the child and said: "See, you woke her up." [ 9 ] Their son came to their bedroom door and was told to go back to sleep. [ 10 ] The next day, she prepared the three oldest children for school. The accused came and punched her in the stomach. She tried to find her cell phone, but to no avail. Then, she asked Mr. Turner's oldest daughter Y, who was leaving for school, to call her sister X. [ 11 ] Mrs. W. states that Mr.

Turner was blocking the door so she couldn't leave. [ 12 ] Later, she finally found the cell battery on the couch and the cell phone under the pillows in the bedroom. She states that she called X asking her to call the police. [ 13 ] Mr. Turner took a rifle in the porch threatening to commit suicide. A while later, the police arrived. [ 14 ] In cross-examination, the facts are not as clear as in the examination-in-chief. [ 15 ] It became unclear where the battery and the cell phone were found. [ 16 ] She said she asked Y to call X.

Later, she added that she asked Y to tell X to call the police. [ 17 ] About the call she made to her sister X, in examination-in-chief, she states that she called her and asked her to call the police, but in cross-examination, says that she asked her for a ride to school because she had to take a lot of stuff with her for Halloween.

[ 18 ] She is confronted by the defence regarding the statement given to the police the very same day: − It is not mentioned that their son came to knock on their bedroom door; − She wrote that she had three glasses of wine instead of one as she testified in examination-in-chief; − There is no mention that Mr. Turner was stopping her from leaving by blocking the door; − In her statement, she asked Mr. Turner if he had taken her cell phone. He would have come and found it under the cushions. [ 19 ] Moreover, in cross-examination, she adds, when asked about the bruises Mr.

Turner had, that he took her hand and hit himself in the face saying: "I'm a diabetic; I bruise easily." There was no mention of that fact when she testified in interrogation-in-chief. [ 20 ] She admits that the police left her alone to write her statement. However, she says that she didn't have the time to put in all the relevant facts because a different police officer came, took the paper and drove her to school. She does not remember if she showed her bruises to the police. TESTIMONY OF MR. SYLVAIN PROULX [ 21 ] Mr.

Sylvain Proulx was one of the police officers that intervened at the couple's residence that morning. [ 22 ] Mrs. W. told them that there was a rifle under the bed; Officer Proulx seized it. The firearm was not locked nor was the soft rifle case in which it was found. [ 23 ] Mr. Turner was arrested. He was collaborative throughout the intervention and voluntarily handed a bullet over to the police. [ 24 ] Officer Proulx took pictures of Mr. Turner's bruises at his lawyer's request. [ 25 ] Officer Proulx confirms that Mrs. W. was left alone to write her statement.

After a while, he came back and asked her to read her declaration. He does not remember, in this specific case, if he asked her if she had anything else to add, but declares that he always does before countersigning a statement given. Mr. Turner's version: [ 26 ] On October 30, 2009, Mrs. W. came back home with the two youngest children around 9 or 9:30 p.m. saying she had been at her friend Minnie's place. [ 27 ] Mr. Turner was upset because the children were supposed to be in bed at this hour. While she was bathing them, she kept yelling at the little one. Mr.

Turner said that he had to intervene. [ 28 ] He confirms that they played Radio Bingo and that she baked a cake. She got angry because he wasn't helping her. [ 29 ] He drank vodka and Mrs. W. drank wine. He denies consuming Bacardi, which is rum. [ 30 ] He admits that they were under a lot of stress at that time: many people under such a small roof, Mrs. W.'s ex-husband's harassment and the fact that he was already sick. [ 31 ] After having played bingo, the argument escalated. They went to bed but he wanted to resolve the argument before they fell asleep. Mrs. W. was lying on her side, her back towards him.

He poked her on the shoulder wanting to discuss. She tried to push him off the bed and Mr. Turner said that he grabbed her to prevent himself from falling. She would have punched him on the chest a few times and grabbed his bicep, which caused bruises. He says: "We were arguing back and forth, both of us." He denies hitting, pinching her or pulling her hair. [ 32 ] The next morning, she looked for her cell phone. He was in such a bad mood that he didn't want to give it to her. He went in the bedroom and turned on the cell phone. She realized that he had the phone when she heard the music.

She took it and called someone. He didn't hear her conversation. [ 33 ] A little while later, the police was at their door. As he knew that his rifle was not under key, he hurried to get it in the porch and hide it under the bed. [ 34 ] He denies having made suicidal threats. [ 35 ] The police found the rifle and arrested Mr. Turner. [ 36 ] About the bullet, he explains that the week before he went hunting wearing the same pants.

He declares that he slept with his pants on and that the bullet had been in the pocket since the week before. [ 37 ] He was not shaken in cross-examination and kept the same version ANALYSIS: [ 38 ] First, it must be said that the accused has nothing to prove. The presumption of innocence protects the accused until the prosecution proves his guilt beyond any reasonable doubt. The prosecution has also to disprove with the same standard of evidence any matter of the defence that is supported by the evidence.

[39] This matter rests firstly on a question of credibility. The Court must govern itself with the teachings of the Supreme Court inR. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. [40] Accordingly, the Court has to weigh the version given by the accused. If the Court believes him, then he must be acquitted. Ifthe Court does not believe the version given by Mr.

Turner, but is left with a reasonable doubt by this version, the Court must acquit him.If the Court does not have a reasonable doubt after having assessed the version of the accused, the Court must weigh all the evidence todetermine if the prosecution has proven beyond a reasonable doubt the elements of the offence. The court may believe all, none or some of a witness' evidence: R. v. M. (R.E.), 2008 SCC 51 , [2008] 3 S.C.R. 3 (S.C.C.) atpara. 65; R. v. François, (SCC), [1994] 2 S.C.R. 827 (S.C.C.) at para. 14; R. v.

R. (D.) (1996), (SCC),107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result) at 318; R. v. Hunter, [2000] O.J. No. 4089 (Ont. C.A.) atpara. 5; R. v. Abdallah, (ON CA), [1997] O.J. No. 2055 (Ont. C.A.) at para. 4, 5. Accordingly, a trier of fact isentitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different partsof the evidence that the trier of fact has accepted: R v. Howe, (ON CA), [2005] O.J. No. 39 (Ont.

C.A.) at para. 44. (…) A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such anapproach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonabledoubt: R. v. W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) at 409; R v. Avetysan (2000), 2000 SCC 56 ,149 C.C.C. (3d) 77 (S.C.C.) at 85-87… [1] [41] The Court must take into account all of the evidence when appreciating the credibility of a witness and the reliability of his orher testimony.

If the Court has a doubt whether a testimony can be believed, in whole or in part, it might come to the conclusion that areasonable doubt exists. [42] Mr. Turner's testimony was given in a clear and detailed manner. There were no contradictions. He was not shaken by cross-examination and kept the same version. [43] It does not mean that the Court believes his entire testimony. [44] Concerning the charges of assault and forcible confinement, the Court has to recognize that he succeeded to raise areasonable doubt. [45] The version given by Mrs. W. was not precise.

It changed between examination-in-chief and cross-examination. There arealso discrepancies between her testimony and the statement she wrote on October 30, 2009. The Court cannot accept the explanation shegave about the facts that were not in her statement: no police officer has any interest in having an incomplete statement from animportant witness of a crime, here the only witness. She was left alone in order to write her statement. If she believed that she needed tostop and resume her recollection later, she could have said so.

She could have requested, on the same day or in the following days, tocomplete her statement because she had forgotten something. [46] The discrepancies are as follows: − How much wine had she consumed? − Did the accused drink rum or vodka? − Did she only tell Y to call X? Did she add to ask X to call the police? − What did she ask X? Why request a ride for school and not to the police station?

No explanation was given. − She forgot to mention the child knocking at the bedroom door in her statement. − What part of the cell phone was found where? [47] The Court cannot rely on this version to find someone guilty because the standard of evidence is not fulfilled. Therefore, averdict of acquitment must be entered on count 1 (forcible confinement) and count 2 (assault). [48] The Court considers having evidence beyond any reasonable doubt on counts 3 (storage of a firearm without reasonableprecaution for the safety of other persons) and 6 (storage of a firearm contrary to the regulation made under s. 117

b) of The FirearmsAct[2]). Both are related to the same facts. The firearm was kept in the porch. Four children were living in the house. Consequently, theCourt declares the accused guilty on count 3. Applying the principles established by the Supreme Court in Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729, to prevent multiple convictions for the same wrongful act, the Court orders a stay of proceedingson count 6. [49] Mr. Turner is also charged with carrying a firearm (count 4) and carrying ammunition (count 5) for a purpose dangerous tothe public peace contrary to s. 88

(2) b) of the Criminal code. [50] In R v. Kerr, 2004 SCC 44 , [2004] 2 S.C.R. 371, the Supreme Court wrote: To satisfy the requirements of s. 88(1) of the Criminal Code, the Crown must establish (1) that the accused possessed a weapon; and (2)that the purpose of that possession was one dangerous to the public peace. The only issue in this case is the question of purpose. Ahybrid subjective-objective test is the proper approach to be applied in the determination of purpose.

The trier of fact must firstdetermine subjectively what the accused’s purpose was (…) Subsequently, the trier of fact must determine objectively whether thatpurpose was, in all the circumstances, dangerous to the public peace.

[ 51 ] Judges Deschamps and Fish add: On a prosecution under s. 88(1) of the Criminal Code , the relevant purpose is that of the accused. Any statement by the accused as to the purpose of the possession is admissible and entitled to appropriate weight. It is not, however, conclusive. The court must consider all of the evidence, including the declared purpose, in determining the real purpose for which the accused had possession of the weapon at the relevant time.

The court, bearing in mind all of the circumstances, must then determine whether that purpose was “dangerous to the public peace” within the meaning of s. 88 of the Criminal Code . [ 52 ] The version the Court accepts, having weighed the credibility of the witnesses, is Mr. Turner's. At least, this version raises a reasonable doubt.

He denied having made suicidal threats, the only purpose revealed by the evidence is that he intended to hide the firearm from the police officers. [ 53 ] There is no sufficient evidence of threats or threatening demeanours nor is there evidence of using this firearm against another person or himself. [ 54 ] About the bullet, the accused knew that the police would find it when they searched him. He states that it was in his pocket since his last hunting trip a week earlier. He also said that he slept with those pants on. The least we can say is it's hard to believe.

Even if the accused's version is not believed on that point, the Court concludes that there is no evidence beyond any reasonable doubt that a dangerous purpose for the public peace existed. Therefore, Mr. Turner is acquitted on counts 4 and 5. __________________________________ LUCILLE CHABOT, J.Q.C. M e Catherine Gagnon Counsel for the accused M e Mélanie Gagné Counsel for the prosecutor Date of hearing: September 16, 2010