R. v. Moyse; R. v. Ens, 2013 MBCA 71

Citation: R. v. Moyse; R. v. Ens, 2013 MBCA 71 Date: 20130801 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin Docket: AR 11-30-07692 ) BETWEEN : ) ) ) HER MAJESTY THE QUEEN ) ) S. A. Inness Respondent ) for the Appellant J. T. Moyse ) - and - ) ) R. J. Wolson, Q.C. and JEFFEREY THOMAS MOYSE ) L. C. Robinson ) for the Appellant T. K. Ens (Accused) Appellant ) ) - and - ) R. P.

Rolston ) for the Respondent Docket: AR 11-30-07693 ) BETWEEN : ) ) Appeals heard: ) February 13, 2013 HER MAJESTY THE QUEEN ) ) Respondent ) Judgment delivered: ) August 1, 2013 - and - ) ) TREVOR KYLE ENS ) ) (Accused) Appellant ) MONNIN J.A. [ 1 ] The accused, two Royal Canadian Mounted Police (RCMP) officers, after a trial before a Queen’s Bench judge (the trial judge), were convicted of assaulting a young man in the parking lot of a rural hotel and while making a stop on route to their detachment office.

They appeal both conviction and sentence. [ 2 ] At the hearing of the appeal, counsel for each of the accused, who were not counsel at trial, moved to introduce fresh evidence, specifically medical evidence to suggest that the injuries allegedly sustained by the complainant during the course of his custody could have been caused in a manner consistent with the evidence at trial, and without any assault by the accused, contrary to the findings of the trial judge. After hearing argument on the motion, the panel reserved its decision on whether to allow the fresh evidence and heard the balance of the appeal.

For the reasons that follow, I have concluded that the fresh evidence should be allowed and that as a result, a new trial should be ordered for both accused. Therefore, I will provide only brief reasons explaining why the fresh evidence should be allowed without discussing in detail the arguments advanced on the appeal proper and the evidence adduced before the trial judge. Evidence [ 3 ] The complainant’s evidence, in essence, was that, in the parking lot of the hotel, he was approached by a police officer, who turned out to be the appellant, Moyse.

He testified that, after producing identification at the officer’s request, he was moving past the officer in order to re-enter the hotel when he was “clotheslined,” wrestled to the ground, handcuffed, arrested and placed in the police

cruiser. He also testified that, during the course of the trip to the police detachment, he was agitated and struck his head against thePlexiglas security barrier and that the officers stopped near a location called MacArthur Falls, where he was taken out of the car andfurther beaten by Moyse. He described injuries to his face, including a black eye, a cut to his lip and an injured nose.

Following hisrelease, he did not go for medical attention, but his sister took photos of his injuries and a complaint was made against the police officers. [4] The police officers both testified as to a different version of events. They stated that the complainant displayed anaggressive attitude in the parking lot and that he had intentionally stepped into Moyse with his shoulder. After being told he was underarrest, he had to be wrestled to the ground and placed in the police cruiser.

During the drive to the police detachment, he continued to beverbally abusive and deliberately struck his head against the Plexiglas security barrier between the front and the backseat. The officersdenied that they stopped at MacArthur Falls, or that a beating took place at any time while the accused was in their custody. Videotape [5] After the complaint was made against the officers, it was discovered that the event was partially recorded on videotapeby a camera overlooking the parking lot installed by the hotel for security reasons. The tape is not of high quality.

However, it doescover the period of time from shortly after the complainant exited the hotel until he was placed into the cruiser car. It was viewed by thetrial judge and used to assess the evidence of the witnesses he heard. The tape was also made available to the panel on the appeal andwas viewed by all three panel members. Reference was made to it during the course of the appeal hearing. Reasons of Trial Judge [6] The trial judge correctly recognized that, as this was a trial of two individuals jointly charged, the evidence had to bedealt with as if they were tried separately.

As well, since both appellants took the stand, it was necessary for the trial judge to analyzethe evidence in accordance with R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, which he did. [7] Dealing firstly with the evidence of the appellant Ens, the trial judge concluded that his evidence was unsatisfactory. He found that the videotape suggested that Ens’s account of the event, as contained in his notes, report and interview, was exaggerated. The trial judge concluded that this was done for the purpose of making the complainant look bad at a time when Ens was not aware ofthe existence of the videotape.

He disbelieved Ens’s evidence and concluded that it did not raise a reasonable doubt. [8] As to Moyse, the trial judge also found that his evidence was unsatisfactory. Again, using the videotape, he foundinconsistencies and contradictions between Moyse’s evidence and what was displayed on the videotape, particularly with respect to theevents in the parking lot and the alleged striking of Moyse by the complainant. In the trial judge’s view, the videotape showed that thecomplainant did not “deliberately or vigorously strike Moyse with his shoulder as alleged by Moyse” (2011 MBQB 219 at para. 18).

Healso found Moyse’s typed statement was an attempt to exaggerate the facts. [9] As to the evidence of the complainant, the trial judge acknowledged that it was not seamless, but found that the essenceof his account was believable. He was of the view that the complainant’s evidence as to what transpired in the parking lot was“confirmed in a material way by the video” (at para. 15). He then went on to state as follows (at para. 19): …. He was injured while detained by police, and they have not explained his injuries.

Banging his head against the Plexiglas does not, Ifind, account for his injuries. …. [10] The trial judge then went on to indicate that he believed the complainant’s evidence that he did nothing to justify anarrest and that there was no basis to support an arrest by the police officers at that time. He also indicated that he believed the evidencethat the police officers made a stop at MacArthur Falls and assaulted the complainant.

Accordingly, he convicted both being satisfiedbeyond a reasonable doubt that they had assaulted the complainant as charged. [11] The police officers were sentenced; Moyse to jail for four months and Ens to a conditional sentence of four months. Appeal [12] Both appellants appeal their convictions and sentences. One issue raised on appeal was the potential conflict created byboth accused being represented by the same counsel. [13] The issue of joint representation of both accused was raised at pre-trial hearings.

However, it was the view of thencounsel for the appellants that the defence was a joint defence, namely, that neither accused had committed an assault, since no assaulthad ever occurred. At the preliminary hearing, the evidence of the complainant was that, at MacArthur Falls, both police officers hadbeen involved in his beating. However, on direct examination at trial, the complainant’s testimony was that only one police officer,Moyse, struck the complainant. That discrepancy was not the focus of any further questioning by counsel for the accused during thecourse of his cross-examination.

In closing submissions, defence counsel did not raise the possibility of only one police officer beinginvolved in the alleged assault at MacArthur Falls. [14] Trial defence counsel, on the hearing of this appeal, provided an affidavit to the effect that, with the benefit of hindsightand because of the evidence as to how the assault at MacArthur Falls unfolded, Ens would have been better served by having counselseparate from Moyse. [15] Without deciding the issue of whether this potential conflict would have been sufficient to invalidate the trial judge’sfindings, let me simply say that it does raise a concern that, at the point of the complainant’s cross-examination at trial, Ens may havebeen at a disadvantage, given that his counsel could not pursue a line of questioning as to whether he had participated in the assault at all.

This was to his detriment. [ 16 ] While in certain circumstances it is appropriate for two accused to be represented by only one counsel, those situations, in my view, are and must remain the exception. Situations where facts are not in issue and where legal interests do not diverge, may be situations where single representation may be available. However, where, in a criminal trial, the evidentiary basis forms the underpinning of the defence, joint representation is fraught with difficulties and dangers. Counsel should be wary of accepting such a retainer.

Nevertheless, as I have found that a new trial should be ordered, I draw no conclusion as to whether the prejudice to Ens in this case would have warranted a new trial for him on its own. Concerns with the Trial Judge’s Reasons [ 17 ] Before dealing with the reasons why I have accepted the motion for fresh evidence and am inclined to order a new trial, I will allude to certain concerns raised by the trial judge’s reasons for judgment. [ 18 ] The first is the use of the videotape by the trial judge to support a number of his findings of credibility.

In his reasons, when commenting on the evidence of the police officers, the trial judge stated that (at para. 17): …. The video confirms that [the complainant] started to walk toward Moyse in the direction of the Inn when Moyse, to use the phrase of Crown counsel, “clotheslined him ” and brought him to the ground for no valid reason. …. [ 19 ] Then later on, the trial judge stated that (at para. 18): …. The video shows that [the complainant] was walking toward Moyse and may have accidently bumped him when Moyse grabbed him.

It shows that [the complainant] did not deliberately or vigorously strike Moyse with his shoulder as alleged by Moyse. …. [ 20 ] Notwithstanding very diligent attempts, neither I nor my colleagues on the panel were able to discern these details from the videotape. Not only is the videotape blurry, the distance at which the camera took the picture prevents seeing the actual events with such clarity. I recognize that, to a certain extent, this is a finding of fact from the evidence and, therefore, a palpable and overriding error standard of review would have to apply to such a finding.

However, I fail to see how the trial judge could have reached the conclusions he did from viewing the videotape. [ 21 ] The second concern arises from the trial judge’s comments that (at para. 19): …. [The complainant] was injured while detained by police, and they have not explained his injuries . Banging his head against the Plexiglas does not, I find, account for his injuries. …. [emphasis added] [ 22 ] That passage from the trial judge’s reasons raises two issues.

The first is a concern that the trial judge may have inadvertently shifted the burden from the Crown to the accused, requiring the police officers to provide an explanation for the injuries consistent with a factual situation whereby they did not assault the complainant. It would be one thing if the trial judge was simply stating that the injuries sustained by the complainant were of such a nature that they could only have been caused by the alleged assault.

However, such an inference would need to be supported by the evidence. [ 23 ] On the contrary, there was an explanation provided, namely, that the complainant had been wrestled to the ground, lawfully, according to the police officers’ testimony, at which time some of the injuries might have been caused. As well, he had later hit his head against the Plexiglas deliberately. [ 24 ] There was no evidentiary basis for the trial judge to conclude that the nature of the injuries could not have been caused by the complainant’s head banging against the Plexiglas.

Therefore, that would have been an inappropriate inference to draw from the evidence before him. It would also be an inappropriate factor to be used to support a finding that the complainant was credible. [ 25 ] That said, while these are issues of concern, because of my view that a new trial should be ordered, I do not conclude whether individually or together they would be sufficient to set aside the conviction. These areas of concern do, however, provide important context for the accuseds’ fresh evidence motion, which I shall now consider.

The Fresh Evidence Motion [ 26 ] The appellants seek to introduce as fresh evidence the report of Dr. Charles Littman, a well-recognized forensic pathologist, to the effect that the injuries depicted in the photographs taken of the complainant upon his release “could have been caused by the struggle in the parking lot … and the blows against the Plexiglas shield.” In his view, it would not be the case that a further

assault was required in order to explain the injuries. [27] The appellants seek to have that evidence allowed on the appeal and, as a consequence, a new trial ordered given that itis inconsistent with the trial judge’s conclusions upon which he likely based his finding of credibility of the complainant and his findingsof guilt beyond a reasonable doubt. [28] This court has the power to consider the admissibility of “fresh evidence” pursuant to s. 683 of the Criminal Code (theCode). That

section provides us with a broad discretion subject to the overriding consideration that the admission would “serve theinterests of justice.” As commented on by this court in R. v. Henderson (W.E.), 2012 MBCA 93, 284 Man.R. (2d) 164, the interests ofjustice include both finality concerns with respect to the trial process and concerns that justice should be done in an individual case. SeeDoherty J.A. in R. v. McBirnie (P.S.) (1992), (ON CA), 59 O.A.C. 1 at para. 34, adopted by the Supreme Court ofCanada in R. v.

G.D.B., 2000 SCC 22 at para. 19, [2000] 1 S.C.R. 520. [29] The criteria to be followed in determining whether to admit the fresh evidence are set out in Palmer et al. v. The Queen, (SCC), [1980] 1 S.C.R. 759 (at p. 775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ (SCC), [1964]S.C.R. 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. Due Diligence [30] As mentioned above, this criterion is of less importance in a criminal proceeding. The Crown argues that in this case,this criterion is not met. The Crown argues that the nature and extent of the complainant’s injuries were known to the accused and theircounsel and that the issue of causation of the injuries was always a live one. It was the accused’s decision not to call medical evidence.

The Crown argues that the failure to do so was a result of a tactical decision. In the Crown’s submission, the complainant’s cross-examination by the accused’s counsel focussed on the lack of consistency between his evidence at the preliminary inquiry and at trial inan effort to suggest that the episode at MacArthur Falls did not occur.

It was never an attempt to show that the injuries could not haveoccurred in a manner consistent with the complainant’s description of the events. [31] The accused counter with an affidavit of trial counsel who states that he does not recall whether he considered seeking amedical opinion on the causation of injuries. He says that he did not make a decision as to whether or not to call medical evidence aspart of trial strategy.

Since no medical evidence was disclosed by the Crown and the charge was common assault not assault causingbodily harm, it was his position that medical evidence did not factor into his analysis on how he would defend the case. [32] While an informed and deliberate decision not to call certain evidence or pursue a line of questioning on the basis of trialstrategy may cause a court to refuse to admit fresh evidence on the grounds that due diligence was not demonstrated, the argument hasless weight in criminal cases and must bow to the “interests of justice” overall consideration.

In any event, in this case, the proposedevidence appears to take on new meaning in light of the trial judge’s reasons, which could not have been foreseen by defence counsel. By this I mean that, at trial, the defence position was focussed on whether there were injuries at all, not their nature and extent. Thenature and extent of the injuries only became relevant as a result of the trial judge’s reliance on them as set out in his reasons. I wouldnot refuse the admission of the fresh evidence on this criterion. Relevance [33] The Crown argues that the evidence of Dr.

Littman, which raises a possibility that the injuries could have been causedby either the struggle in the parking lot or blows against the Plexiglas shield, is not relevant because there is no evidential foundation thatan injury occurred to the complainant’s face during the episode in the parking lot or when he hit his head on the Plexiglas. According toCrown counsel, the evidence adduced is that of the accused Ens, that there was an edge at the bottom of the Plexiglas that could havecaused a cut and evidence from the complainant that he struck his forehead on the Plexiglas.

There is no evidence of an impact to eitherhis lips or cheek or that these injuries could have occurred in the fashion described by Dr. Littman. [34] I disagree. The trial judge, in his reasons, referred to the complainant’s evidence on direct that, on the way to thedetachment, he deliberately banged his head against the Plexiglas divider. The trial judge also specifically commented that this couldnot account for his injuries. It appears to be a factor in his assessment of the credibility of the complainant. As such, the causation of the

complainant’s injuries was relevant to the trial judge’s determination of guilt. Credibility of the Evidence [ 35 ] The Crown acknowledges Dr. Littman’s expertise in the area of forensic medicine, however argues that his opinion is limited because it is based simply upon a review of photographs and the transcripts of evidence at trial, not upon a personal examination nor a first-hand view of the injuries. [ 36 ] In my view, this goes to the weight of the evidence and not to its relevance or admissibility. I would conclude that Dr. Littman’s evidence is reasonably capable of belief for the purpose of this motion.

Effect on the Verdict [ 37 ] The Crown argues, as it did on the issue of relevance, that since there is no evidence of any injuries to the complainant’s nose, cheeks or mouth other than the complainant’s version of the events, nor any evidence that these injuries could have occurred in the parking lot prior to the complainant being placed in the vehicle, there is still evidence capable of supporting the trial judge’s assessment of the complainant’ s credibility.

Accordingly, the proposed evidence would not necessarily have an effect on the verdict of guilt. [ 38 ] That may be so were it not for the fact that the trial judge, in his reasons, clearly identified his finding that the complainant was injured while in police custody in an unexplained fashion was a factor in his determination of the complainant’s credibility. That finding of credibility extended to issues including the manner of the arrest (and therefore its lawfulness) as well as to the alleged assault at MacArthur Falls which is, of course, the most serious allegation against Moyse.

Causation of the injuries, or rather whether they could have been caused in a manner consistent with no assault by the accused, is relevant and the proposed evidence could reasonably be expected to have affected the result, thereby satisfying the last criterion. Conclusion [ 39 ] In

summary, I am of the view that the appellants have met all of the criteria for the admission of fresh evidence and that the “interests of justice” on the particular facts of this case require the fresh evidence to be admitted and a new trial to be ordered. J.A. I agree: J.A. I agree: J.A.