Ontario Court of Justice

Date: 2015-02-24 Court File No.: Peterborough 14-0873

Between:

Her Majesty the Queen

— and —

Amber Turmon

Before: Justice S. W. Konyer

Heard on: February 3, 2015

Reasons for Judgment released on: February 24, 2015

Counsel:

• Ms. S. Pickens — counsel for the Crown
• Mr. N. Baker — counsel for the defendant Amber Turmon

Konyer J.:

[1] Charge and Issues

Amber Turmon is charged with being a party to the offence of breach of recognizance by abetting Sejean Reid in breaching his recognizance by failing to "reside with your surety each and every night" as specified in one of the conditions of the recognizance in question between the dates of March 17 and April 1, 2014. Two issues have been identified by counsel. Firstly, whether Mr. Reid in fact breached his recognizance by failing to reside each and every night with Ms. Turmon, one of his two sureties during the period in question. If I find that Mr. Reid did breach this term of his recognizance, the second issue is whether she possessed the requisite intent for committing this offence as an abettor.

Summary of the Facts

[2] Bail Hearing and Release

The facts of this case are reasonably straightforward. Sejean Reid was charged with a number of criminal offences and was brought before a Justice of the Peace in Peterborough on February 26, 2014. At that time, Crown counsel (not Ms. Pickens) consented to his release on a recognizance of bail with two sureties, Amber Turmon and Dian Benjamin, who is the mother of Sejean Reid. I have been provided, on consent, with a copy of the transcript of proceedings from that appearance. Although this was a consent release, both sureties gave evidence under oath and answered questions posed to them by Crown counsel.

[3] Ms. Turmon's Testimony – Residence

Ms. Turmon testified on that occasion that she had known Mr. Reid for several months as the boyfriend of her daughter. She was then asked the following question at page 6, line 31:

Q. All right. And the bail conditions we're suggesting are that he live at 294 Townsend, and that address is….

A. It's – it's where my daughter and I stay. So he's okay to stay there as well.

[4] Ms. Turmon's Testimony – Monitoring Conditions

Crown counsel then confirmed that the conditions of bail would include house arrest, and obtained an assurance from Ms. Turmon that she would monitor a "door-knock" condition that would require Mr. Reid to present himself at the door of the residence if the police conducted a compliance check. As it turns out, the presiding Justice of the Peace declined to impose this condition, which he believed would be unconstitutional, but this exchange between the Court and Crown counsel did not occur until later in the proceedings. After this line of questioning, the following exchange occurred between Crown counsel and Ms. Turmon beginning at page 7, line 22:

Q. That you don't anticipate any change of address for yourself, but do you think you're going to move or anything in the near future?

A. No.

Q. Okay. If there was any idea that you were going to move that he would move with you.

A. Right.

Q. All right.

A. Yes.

Q. We'd be suggesting that he not have any non-medically prescribed drugs.

A. Mmhm.

Q. Is that something you feel you can monitor with him?

A. Yes.

Q. He'll be in the house but, I mean….

A. Yes.

Q. And how would you go about doing that?

A. I'm self-employed, and I actually have a very flexible schedule and I'm around a lot and I'm there a lot. And even before his arrest, between him and my daughter, I have always been their chauffer. They don't drive, so I usually take them to appointments, groceries, whatever, you know, we all need to do. We have a land line house phone, so if I'm actually out of the house I have contact at all times.

[5] Ms. Turmon's Undertakings

Ms. Turmon then confirmed her intention to monitor other conditions of release including non-association conditions, and confirmed that she understood her ability to relieve herself of her surety obligations at any time, and that she understood her obligation to report any breach of conditions by Mr. Reid that came to her attention. At that point, the following exchange occurred beginning at page 10, line 22:

Q. And I take it you're going to want to have a – you're going to have a copy of his bail paper if he's released. You're going to want to look through it in detail and make sure you understand the conditions.

A. Yeah.

Q. Yeah. And if you have any questions about conditions I take it you'll talk to his lawyer and make sure you understand what they mean rather than just guess.

A. Yes, okay.

[6] Recognizance Issued

After the completion of questioning of Ms. Turmon and the second surety, a discussion occurred between Crown counsel, defence counsel and the Court about the conditions to be included in the recognizance. Ms. Turmon was not present in court when the conditions were reviewed by the Court with Mr. Reid, but Mr. Reid's counsel confirmed to the court that he had reviewed the proposed conditions with both sureties. Mr. Reid was then released on a recognizance of bail which included names and addresses for both the accused and each surety. The address listed on the recognizance for both Mr. Reid and Ms. Turmon was 294 Townsend Street in Peterborough. Condition 1 on the recognizance reads "that you reside with your surety each and every night."

[7] Police Investigation and Surveillance

On consent and as part of the Crown's case I received Exhibit 3, which is a report from surveillance officers who conducted surveillance on Ms. Turmon during the time period covered by the Information as a result of a suspicion on the part of the investigating officer, Cst. Bell, that Mr. Reid was not complying with his condition to reside with his surety each and every night. This suspicion arose because Cst. Bell had been inside the Townsend Street residence and knew it to be a small one bedroom apartment. Cst. Bell also conducted inquiries through law enforcement databases and learned that Ms. Turmon's driver's licence returned to an address of 1618 Ramblewood Drive in the city of Peterborough, and that police had attended this address several times between 2007 and 2013 as a result of incidents involving Ms. Turmon and Ken Turmon, her spouse. On March 7, 2014, less than two weeks after Mr. Reid was released, Cst. Bell observed Ms. Turmon leaving the Ramblewood address at approximately 8:00 a.m., further confirming her suspicion that Mr. Reid was not complying with the condition to reside with his surety each and every night.

[8] Surveillance Evidence – March 17-20, 2014

The surveillance evidence is that Ms. Turmon was under police surveillance between March 17 and 20, 2014. During that time she spent every night at the residence on Ramblewood, and made frequent visits during the daytime and evening hours at the Townsend address. She took both her daughter and Mr. Reid on various errands, including picking up food and going to probation appointments and court appearances. On March 20, after Ms. Turmon returned to the Ramblewood address and the house was observed to be in darkness, police attended the Townsend address for a compliance check on Mr. Reid at 10:43 p.m. He was present and informed police that his surety was at work and could be gone for an hour or all night.

[9] Testimony of Ms. Turmon's Daughter

The Crown called Alisha Bembridge, Ms. Turmon's daughter and the boyfriend of Mr. Reid during the relevant time, as a witness. She testified that her mother lived at the Ramblewood address throughout 2014, that she herself has lived at the Townsend address for about a year and a half, that Mr. Reid lived with her at that address in March 2014 but no longer, as they broke up following what she described as his "second arrest". She said that her mom helps her with food and groceries, and that her mom sleeps over on the living room couch once or twice a week, sometimes more often if Ms. Bembridge is having what she described as "mental health issues." She said that this pattern was constant even while Mr. Reid was living at the apartment.

[10] Testimony of the Accused – Evidence in Chief

The accused testified in her own defence. Her evidence in chief mirrored that of her daughter, in that she confirmed that she visited the Townsend address daily and slept over at the Townsend residence twice a week on average, including during the period after Mr. Reid's release on the recognizance. She stated that she kept a comforter and pillow at the Townsend residence for use on the nights she slept over, and that she kept a bag with clothing and toiletries in her car for those nights.

[11] Testimony of the Accused – Cross-Examination

In cross-examination she agreed that Ramblewood was her primary address and the address she used for everyday purposes. She also agreed that she never advised the court at Mr. Reid's bail hearing of this fact. She agreed that the conditions of the recognizance were reviewed with her by the court clerk before she signed that document, and she agreed that on those nights when she did not stay at the Townsend address that Mr. Reid was not with her.

Position of the Parties

[12] Defence Position

The defence argues that a person may have more than one residence and cited a number of authorities in support of that proposition. Mr. Baker submits that both the Townsend apartment and the Ramblewood home were residences of Ms. Turmon. Since there is no evidence that Mr. Reid was not present in one of the residences of Ms. Turmon, it is argued that I cannot find that Mr. Reid committed a breach of the impugned condition on his recognizance. Since there was no breach committed by Mr. Reid, it follows that Ms. Turmon cannot be convicted as an abettor of that offence.

[13] Crown Position

The Crown argues that the impugned condition of Mr. Reid's recognizance, which reads in its entirety "reside with your surety each and every night", could not be clearer or less ambiguous. The surveillance evidence, the testimony of the accused's daughter, and even the testimony of the accused herself clearly proves that Mr. Reid did not reside with his surety each and every night, because most nights Ms. Turmon slept at her Ramblewood home while Mr. Reid slept at the Townsend apartment. Further, the Crown argues that this obligation was made clear not only to Mr. Reid during the course of the February 26 proceedings, but also to Ms. Turmon by way of the questions put to her in the witness box during those proceedings, her acknowledgement that the terms of the recognizance were explained to her by the court clerk prior to her signing as a surety, and as a result of the assurance given to the court by Mr. Reid's counsel that he had reviewed the terms of the recognizance with both sureties prior to their testimony. Therefore, the Crown argues that it clear that Mr. Reid was in breach of his recognizance on the relevant dates, that Ms. Turmon was aware of this fact, and that she wilfully abetted his commission of this offence by knowingly encouraging him to not reside with her each and every night.

Analysis

[14] Whether Mr. Reid Breached the Recognizance

Ms. Turmon is charged with abetting Sejean Reid in the commission of the offence of breach of recognizance. In order for there to be any criminal liability attaching to Ms. Turmon's conduct, I must first be satisfied that Mr. Reid committed the offence of breach of recognizance. Although I agree with Mr. Baker that an individual can have more that one residence, that is not the end of the matter. Even if I accept that the Townsend apartment was a residence of Ms. Turmon, the recognizance did not simply require Mr. Reid to be in his surety's residence nightly, it required him to "reside with your surety each and every night". So even if Ms. Turmon had multiple residence, the words "reside with" together with the words "each and every night" leave no room for doubt, in my view, that Mr. Reid was required to be in whichever residence Ms. Turmon was occupying every single night. If she changed residence frequently, then he was clearly required to accompany her to the residence where she spent her nights. Therefore, I am satisfied that Mr. Reid was in breach of condition 1 of his recognizance, at a minimum on the nights of March 17, 18, 19 and 20, 2014 when the surveillance evidence demonstrates that he and Ms. Turmon spent their nights in different residences.

[15] Party Liability – The Law of Abetting

Section 21(1)(c) of the Criminal Code governs party liability for abettors, and provides that "[e]very one is a party to an offence who abets any person in committing it". Abet means to encourage. A person is a party to an offence as an abettor if the person says or does something that encourages the principal to commit the offence and offers the encouragement by words or conduct with the intention of encouraging the principal to commit the offence. An intent to encourage is required: see R. v. Almarales, 2008 ONCA 692, at para. 67. In other words, it is not enough if I simply find that Ms. Turmon's words or actions had the effect of encouraging Mr. Reid to breach the impugned condition; in order to convict I must be satisfied that she intended for her words or conduct to have this effect.

[16] Conduct as Encouragement

In this case, there is no evidence that Ms. Turmon encouraged Mr. Reid to breach the condition in question by words. It is from her conduct, which involved deliberately returning to the Ramblewood residence to spend the night knowing that Mr. Reid was staying at the Townsend apartment, that I must determine whether she encouraged Mr. Reid to breach his condition and whether she intended to encourage him to commit this offence.

[17] Effect of Ms. Turmon's Conduct

In my view, it is clear that Ms. Turmon's conduct had the effect of encouraging Mr. Reid to breach his recognizance. She visited the apartment daily, brought Mr. Reid and/or her daughter shopping, brought them food, drove them to appointments including court dates, and then left Mr. Reid and her daughter alone while she returned to her home on Ramblewood Drive. The effect of these actions upon Mr. Reid as they related to his compliance with the condition requiring him to reside with Ms. Turmon, his surety, each and every night, could only have been to encourage him not to comply with that condition.

[18] The Question of Intent

The more challenging issue is whether this was what Ms. Turmon intended to do. Did she mean to encourage Mr. Reid's non-compliance with the impugned condition?

[19] Ms. Turmon's Knowledge of the Condition

The inference which I draw from the transcript of proceedings at Mr. Reid's bail hearing is that Ms. Turmon was fully informed of the requirement that Mr. Reid reside with her each and every night. I do not place any weight on the fact that Mr. Reid's counsel told the presiding Justice of the Peace that he had reviewed the conditions with Ms. Turmon. The Crown did not call this lawyer as a witness, and I am not prepared to speculate as to the thoroughness with which he explained the conditions to Ms. Turmon. However, it is abundantly clear from the transcript as a whole, particularly the passages cited above, that Ms. Turmon conveyed to the court the impression that she and her daughter lived at the Townsend apartment, and that Mr. Reid would be living there with them. She told the presiding Justice that this was where she and her daughter "stayed", that she had no intention of moving in the near future, that she had a flexible work schedule and was "around a lot" – meaning at the apartment – and that "[w]e have a land line house phone" so that she could remain in contact with her daughter and Mr. Reid when she was out of the apartment.

[20] Deliberate Misrepresentation to the Court

It is telling, in my view, that Ms. Turmon made no reference whatsoever to the Ramblewood home she shared with her husband during the course of these proceedings. It is clear from the questions put to her by Crown counsel at the bail hearing that there was an expectation that she would closely monitor Mr. Reid once he was released. The inference which I draw from this evidence is that Ms. Turmon deliberately conveyed to the court a false impression about her actual intention to fulfil the court's expectations of her as a surety. Presumably, she did this out of love and concern for her daughter, who was then romantically involved with Mr. Reid, rather than out of any malice. She may not have deliberately given false evidence to the court, but she certainly left out relevant information which would have impacted on her suitability as a surety. The only logical inference I can draw is that she did so deliberately in order to secure Mr. Reid's release.

[21] The Address on the Recognizance

The fact that she signed the Recognizance of Bail which gave her address as 294 Townsend Street is also telling. This is not the address on her driver's licence, or the address she uses for any other purpose. The only logical reason for her giving this address and not the Ramblewood address to the court is because she would have known that concerns would have been raised had she disclosed the fact that she lived with her husband on Ramblewood Drive. The most obvious concern would have related to the condition that is the subject of this trial – how could Mr. Reid reside with his surety each and every night if she lived at a different address from him? I find, therefore, that Ms. Turmon deliberately misled the court by failing to disclose this highly relevant fact.

[22] Inference of Intent

Accordingly, once Mr. Reid was released from custody and Ms. Turmon began encouraging him to breach his bail by leaving him unsupervised at night in the Townsend apartment, the only reasonable inference I am able to draw is that she did so intentionally. That Mr. Reid would be encouraged to breach the "reside with your surety each and every night" condition was the natural consequence of Ms. Turmon's deliberate conduct in choosing to spend nights away from the Townsend address she had given to the bail court, knowing that this was where Mr. Reid was spending his nights. I find that she intended this result.

Conclusion

[23] Findings

Sejean Reid was released on a Recognizance of Bail dated February 26, 2014, with a condition requiring him to "reside with your surety each and every night". The surety with whom he was to reside was Amber Turmon, the mother of his then-girlfriend, who had led the court to believe that she lived with her daughter, and who undertook as a surety an obligation to supervise Mr. Reid. Instead, she encouraged Mr. Reid to breach the above-noted condition on a regular basis by leaving the residence whose address appeared underneath both Mr. Reid's name and her own name on the Recognizance of Bail to spend nights with her husband at her actual home address, an address she had neglected to mention to the court that released Mr. Reid. I find that Mr. Reid breached the above-noted condition of his release between the dates particularized on the Information. I find that Ms. Turmon's conduct had the effect of encouraging Mr. Reid to breach this condition, and I further find that she intended her conduct to have this effect.

[24] Verdict

I am therefore satisfied beyond reasonable doubt of the guilt of the accused on the single count before the court, and she is found guilty.

Released: February 24, 2015

Signed: "Justice S. W. Konyer"