COURT FILE NO.: 4/23

DATE: 20230612

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ROBERT B. TURNER

Accused

J. Bruno, for the Respondent

D. Hakim, for the Appellant

HEARD: June 5, 2023

PINTO j

REASONS FOR DECISION ON APPEAL

Overview

[1] The appellant, Robert Turner, appeals from his conviction on October 31, 2022 in the Ontario Court of Justice before Speyer J. The appellant was convicted of assault of the complainant, his former girlfriend, contrary to section 266 of the Criminal Code. The appellant and the complainant had dated for approximately two years and had lived together for part of that time.

[2] The Crown’s only witness was the complainant. She testified that shortly after an argument with the appellant in the early hours of the morning at a club event on December 15, 2019, he approached her outside the club and struck her in the head, scratching the side of her face. The appellant testified and denied making physical contact with the complainant. A Defence witness, Mr. Ambursley, testified in support of the appellant. The trial judge was satisfied beyond a reasonable doubt that the assault occurred as described by the complainant and convicted the appellant.

[3] The trial took place over two days, on October 6 and 7, 2022. The appellant’s grounds of appeal focus on the trial judge’s purported mishandling of an adjournment request by Defence counsel that occurred during the complainant’s cross-examination. The Defence sought an adjournment of the trial to the next day after it was revealed that the complainant had in her possession a photograph and text messages that had not been provided to the Crown and which, consequently, the Crown had not disclosed to the Defence. The trial judge only granted the Defence a 20-minute adjournment before continuing the cross-examination.

[4] The appellant submits that the trial judge made errors of law in granting such a brief adjournment and compromised the Defence’s ability to properly cross-examine the complainant. The Defence further submits that the appellant’s conviction amounts to a miscarriage of justice and that section 686(1)(b)(iii), the curative provision of the Criminal Code, does not apply.

[5] For the reasons that follow, while I find that the trial judge’s adjournment decision was exercised on improper principles and without the correct factual foundation, I find that the Defence was not prejudiced in any manner and no substantial wrong or miscarriage of justice has occurred. In my view, the Defence was still able to engage in a full cross-examination of the complainant including with respect to the newly disclosed evidence. The curative provision of section 686(1)(b)(iii) of the Criminal Code applies, and the appeal should be dismissed.

Discussion

[6] In the course of the complainant’s cross-examination on the first day of trial, she testified that she had taken a photograph of her face after the appellant assaulted her. The photograph had not previously been disclosed to the Defence. The cross-examination continued and the complainant was further cross-examined about the content of various text messages between her and the appellant. The court took an afternoon break for 15 minutes.

[7] Upon returning from the afternoon break, the Crown advised the court that as a result of a conversation with the complainant over the break, the Crown learned that the complainant had in her possession text messages that had not previously been provided to the Crown. The text messages included a text from the appellant to the complainant that stated, “I’m sorry if I scratched you. It wasn’t my intention. I was just telling you to be quiet…” The Crown provided the new text messages to the Defence.

[8] The Crown advised the court that “I assume my friend is asking for an adjournment to tomorrow based on this new information that was provided and she will consider her options after that.” The Crown agreed with the Defence’s adjournment request adding that “she probably deserves an adjournment to tomorrow based on this new text message that was provided to her” and that “[i]t’s quite important, quite relevant to the proceedings.”

[9] The trial judge then asked, “what about the photograph?” in reference to complainant’s earlier testimony about taking a photograph after the assault. The Crown advised that the photograph had now been provided to the Defence. The trial judge confirmed with Defence counsel that an adjournment was being requested until the following morning and asked about the remaining length of cross-examination. Defence counsel answered that she had “two more pages so not at all very long but of course depending on kind of what happens tomorrow. That may change as well.”

[10] The complainant was excused from court and the trial judge engaged in a further discussion with Defence counsel as to the basis of the adjournment request. I have appended to these Reasons an excerpt from the trial proceedings in respect of the trial judge’s adjournment decision.

[11] In summary:

• The trial judge and Defence counsel engaged in an exchange in which the trial judge suggested that, since the relevant text message was between Mr. Turner and the complainant, Mr. Turner must have had it in his possession.

• Defence counsel suggested that she could not reveal discussions that were covered by solicitor-client privilege and reminded the trial judge that the Defence has no disclosure obligations.

[12] In concluding the adjournment discussion, the trial judge ruled:

I’m giving you 20 minutes to talk to your client and prepare your continued cross-examination. This is evidence he had. It’s not new at all. It’s a text message between the two of them. That’s your client. Okay, 20 minutes. Prepare your cross-examination. We are not adjourning this.

[13] Following the 20-minute recess, Defence counsel continued her cross-examination of the complainant and dealt with the photograph and text messages that had belatedly been disclosed by the Crown. Defence counsel concluded her cross-examination on the afternoon of October 6, 2022 and the Crown declined to ask any questions on re-exam. The complainant’s evidence concluded and the trial continued the next day.

[14] Upon resuming the next day on October 7, 2022, the Defence called Mr. Ambursley, its first witness. Following Mr. Ambursley’s testimony, the Defence called Mr. Turner as its final witness. Defence counsel did not return to the subject of the adjournment request or suggest that the Defence was prejudiced by the trial judge’s adjournment ruling, or that any miscarriage of justice had occurred.

[15] On appeal, the appellant argues that:

a) In granting only a 20-minute adjournment to the Defence, the trial judge erred and did not exercise her discretion to grant the adjournment in a judicial manner; and

b) The trial judge’s failure to grant the requested adjournment until the next morning deprived the appellant of a fair trial or the appearance of a fair trial, amounting to a miscarriage of justice.

[16] The law concerning the granting of an adjournment is set out in R. v. Ke, 2021 ONCA 179 at para. 57:

Decisions on applications for an adjournment involve the exercise of judicial discretion. They require considerations of all the circumstances to determine what is in the best interests of the administration of justice. The exercise of discretion must be principled. It must be firmly grounded in the circumstances disclosed in the case at hand. The interests of justice are a joint venture, note a sole proprietorship. They are not for the sole use of one party to the exclusion of the other.

Trial Judge’s discretion not exercised in a judicial manner

[17] I agree with the appellant that the trial judge’s exchange with Defence counsel and the trial judge’s brief reasons for adjournment disclose legal error.

[18] First, it is clear that the trial judge premised her adjournment decision on the new text message and failed to consider the impact of the new photograph. Although at an earlier point in the proceeding, the trial judge was aware of the new photograph because she specifically asked about it, nowhere in her discussion with Defence counsel or in her ultimate adjournment ruling did she reference the photograph. Accordingly, the trial judge premised her adjournment decision on a faulty factual foundation namely, that the adjournment request concerned only the new text message.

[19] Second, it is evident that the trial judge concluded that because the text message was contained in a text exchange between Mr. Turner and the complainant, it was not “new” to him. However, the more important inquiry was whether the text message was new in the sense of being newly disclosed by the Crown to the Defence so that the Defence could properly prepare for trial. As Defence counsel noted, “we prepared obviously the defence with the understanding that we were provided with full disclosure.”

[20] I would not go as far as the appellant in characterizing the fact that the appellant likely had the impugned text message in his possession as “irrelevant” to the adjournment decision. I consider that fact part of the discretionary considerations that could inform the trial judge’s adjournment ruling. However, I find that it should have been a rather minor consideration, with the more important consideration being whether and when the Crown disclosed the new material to the Defence. Here, there can be no doubt that Defence counsel only received the new text message and photograph on the first day of trial.

[21] Third and finally, the trial judge’s adjournment decision does not evidence any attempt to canvass the relevant considerations. While accepting that a trial judge’s reasons for adjournment can be very brief and of a summary nature, the available record suggests that the trial judge did not consider other relevant factors such as: (a) the Crown and Defence being aligned in their willingness to adjourn to the next morning; and (b) the impact, if any, of the adjournment request on the overall length of the trial. The trial judge appears to have made up her mind that she was either not going to grant the adjournment, or grant a very short one, without accepting any further submissions from counsel.

[22] I find that the trial judge’s discretion was not exercised in a judicial manner as it was based on an improper consideration, a faulty factual foundation, and without adequate consideration of the relevant factors.

[23] Although I have found that the trial judge committed legal errors in her adjournment decision, it is still incumbent on me to determine whether, in the circumstances of this case, a substantial wrong or miscarriage of justice has occurred. If I conclude that it has not, I am entitled to dismiss the appeal pursuant to s. 686(1)(b)(iii), the curative proviso of the Criminal Code.

No substantial wrong or miscarriage of justice

[24] Section 686(1)(b)(iii) of the Criminal Code, known as the curative proviso, permits an appellate court to dismiss an appeal, despite an error of law, when there is “no substantial wrong or miscarriage of justice.”

[25] The Crown may rely on the curative proviso where the error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable (R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53): R. v. Samaniego, 2022 SCC 9 at para. 65.

[26] The Crown did not pursue the argument that the evidence was so overwhelming that a conviction was inevitable. Rather, the Crown argued in the alternative that despite an error of law – here, an unprincipled decision by the trial judge to adjourn for only 20 minutes and not accede to the Defence request to continue cross-examination the next morning – no substantial wrong or miscarriage of justice occurred.

[27] Impliedly, the Crown argued that the trial judge’s error was harmless or trivial. I would not characterize the error as trivial as the right of cross-examination is fundamental, but in the circumstances of this case the error was harmless because the Defence appears to have engaged in full and effective cross-examination. This was also not a complicated case.

[28] The appellant did not argue that the cross-examination would have been different, or that other defence evidence would have been called, had the adjournment request been granted.

[29] On reviewing the record of proceedings below, I note the following:

a) At an earlier point in the cross-examination of the complainant that occurred prior to the afternoon pause and prior to the Defence adjournment request, the complainant was asked a series of questions both about the alleged assault and the text messages between her and the appellant.

b) Following the trial judge’s adjournment ruling and the 20-minute pause, Defence counsel engaged in a full and lengthy cross-examination of the complainant about the new photograph and where the scratch was visible on the photograph that the complainant provided. The new photograph and an enlarged version of the new photograph were entered at trial as two exhibits. In closing argument, Defence counsel did not indicate that she had an inadequate opportunity to assess the photo, but rather that “we have no evidence about the authenticity of the time-stamp on the photo and no opportunity to challenge it.”

c) As well, following the adjournment ruling, Defence counsel engaged in a full and lengthy cross-examination of the complainant about the new set of text messages that she had produced that day.

[30] On my review of Defence counsel’s cross-examination of the complainant, the questions appear to be through and properly raise the issues of alleged inconsistencies between the complainant’s testimony and what the new photograph and text messages state. Moreover, it does not appear that the Defence was cross-examining on a series of assumptions that, as a result of the new disclosure, had to be abandoned or reconsidered. In other words, notwithstanding that the trial judge only provided the Defence with 20 minutes to review the new disclosure and continue her cross-examination, the record does not suggest that the Defence had any difficulty in doing so.

[31] Appellant’s counsel submitted that Defence counsel at trial did not have an adequate opportunity to ascertain the nature of the complainant’s apparent injury from the photograph and, accordingly, the accused’s ability to challenge the complainant on inconsistencies between the complainant’s description of her injuries and what was shown in the photograph was impaired. I disagree. The record of proceedings suggests that Defence counsel asked multiple questions about the photograph and how it related to the complainant’s apparent injuries. The transcript of these question runs around 6 pages (page 114 to 120). The questions were not scattershot and appear to be precisely the type of questions that would challenge the complainant’s narrative of the assault.

[32] Similarly, with respect to the new text messages, particularly the new text message from the appellant to the complainant which states, “I’m sorry if I scratched you it wasn’t my intention. I was just telling you to be quiet….”, Defence counsel asked the following questions at trial and obtained the following answers:

Q. I’m going to suggest that what Mr. Turner is saying in this text message is exactly what happened in that club on that patio.

A. He just apologized.

Q. What do you mean?

A. Well he says I’m sorry if I scratched your face. It wasn’t my intention.

Q. We don’t know. What did you think was his intention? What did you think about his intention. He said if I scratched you. He’s not saying I’m sorry I scratch you, right? So I’m suggesting again, just to be very clear, that what he is saying here is what in fact happened which is Mr. Turner did not scratch you this night.

A. So why did he apologize?

Q. He’s apologizing because he’s trying to reconcile with you. He’s trying to talk to you about how much he loves you. He’s denying these cheating allegations, trying to make you feel better and validate your feelings. You knew that, that’s what I’m suggesting. Ms. [complainant’s last name]

A. You’re incorrect.

[33] I find that Defence counsel had an ample opportunity to and did, cross-examine the complainant concerning the newly disclosed evidence.

[34] I note that in Samaniego, one of the errors alleged by Defence counsel on appeal was that the trial judge improperly curtailed the Defence’s cross-examination of a key Crown witness, a security guard. The Supreme Court agreed with the Defence that the trial judge’s restriction of any cross-examination about the security guard’s preliminary inquiry testimony prior to his adoption of his police statement was an error. However, the majority found, using the curative proviso, that the error was not fatal for the Crown. While the issue in Samaniego was different, namely the improper curtailment of the Defence’s cross-examination rights, it does bear some resemblance to the issue in the within appeal since the Defence argues that Speyer J.’s decision to grant only 20 minutes to the Defence to review and recalibrate its cross-examination of the complainant was fatal to the fairness of the trial. As in Samaniego, I find that a careful review of the below proceeding suggests that the Defence had a thorough opportunity to cross-examine its key witness and no substantial wrong or miscarriage of justice has occurred.

[35] The appellant relies on R. v. Sljoka, 2010 CarswellOnt 4413, for the proposition that an appellate court may grant an appeal without considering whether a substantial wrong or miscarriage of justice has occurred. In Sljoka, the Crown appealed from the dismissal of charges by a Justice of the Peace (JP) in respect of an accused who was charged with speeding under the Highway Traffic Act. In granting the Crown’s appeal and ordering a new trial, the appeal judge found that the JP refused to grant an adjournment without properly hearing from the parties and the prosecutor as to why the prosecutor was unprepared to proceed to trial.

[36] I would distinguish Sljoka from the case at hand. The curative proviso of the Criminal Code would not even apply. The proviso deals with an appeal from a conviction or against a verdict that the appellant is unfit to stand trial or is not criminally responsible on account of mental disorder, whereas in Sljoka, the Crown was appealing from the JP’s dismissal of charges.

[37] The appellant also relies on R. v. Ke where the Ontario Court of Appeal allowed an appeal and ordered a new trial where the appeal court found that the trial judge’s decision to refuse the Crown’s request for a brief adjournment was flawed. However, I find that Ke is not helpful to the appellant because the Crown was appealing from the trial judge’s stay of the proceedings. Once again, the curative proviso would not be available as it applies to an appeal against a conviction or against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder.

[38] In conclusion, while I find that the trial judge’s adjournment decision was exercised on improper principles and without the correct factual foundation, the Defence was not prejudiced in any manner and no substantial wrong or miscarriage of justice has occurred. The appeal is dismissed.

_______________________ PINTO j

Date: June 12, 2023

APPENDIX

Excerpt from Transcript of Proceedings on October 6, 2022 in the OCJ before Speyer J.:

THE COURT: Are we ready?

MR. MOREIRA: Your Honour, I had a conversation with my friend over the break. I had a conversation with the witness who had, as a result of the text messages she had a very important text message to provide. I have given it to my friend. I assume my friend is asking for an adjournment to tomorrow based on this new information that was provided and she will consider her options after that. I’m in agreement with her that she probably deserves an adjournment to tomorrow based on this new text message that was provided to her. It’s quite important, quite relevant to the proceedings. To be honest, from the Crown’s perspective we had no idea that this existed. It emerged based on the line of questioning based on these text messages but this is a very relevant message that probably goes to the heart of this gentleman’s defence.

THE COURT: Okay. And what about the photograph?

MR. MOREIRA: Yes. That has also been provided and there will be some discussion over that as well.

THE COURT: All right. Ms. Lee, you are asking for an adjournment until tomorrow?

MS. LEE: Well we have tomorrow set aside so yes, Your Honour. I don’t think there is anything further we can do at this point.

THE COURT: Okay. How much longer do you think you’ll be with the witness?

MS. LEE: Honestly I have two more pages so not at all very long but of course depending on kind of what happens tomorrow. That may change as well.

THE COURT: Okay. I’m just going to ask [the complainant], if you don’t mind to just step outside briefly. …

WITNESS EXCUSED FROM THE COURTROOM.

THE COURT: Just so that I’m clear, the purpose of the adjournment is, like the reason you cannot continue today is why exactly?

MS. LEE: We can’t continue today because we were provided with this last minute disclosure that, we prepared obviously the defence with the understanding that we were provided with full disclosure. This is material disclosure that we haven’t been provided with.

THE COURT: I think we have to be careful when we use the word disclosure because disclosure is something that the Crown has, right, and they turn it over to the defence. I think what you are talking about is something that was produced today, a third party document, text message, that the complainant has, right, or is this a text message that the Crown had and didn’t give to you? There’s a difference, right?

MS. LEE: I think I fail to see the difference because now the witness, the key witness, has provided evidence that is now in the hands of the Crown that they are now disclosing to us.

THE COURT: Okay. Fair enough. But I’m just saying it is late disclosure in the sense that it wasn’t produced to the Crown until today, right?

MS. LEE: I don’t know.

THE COURT: Well Mr. Moreira has just told us.

MS. LEE: I guess my point is the complainant is saying whether the Crown or the police, like our understanding of the situation is that the complainant said that she provided it to the police. Now what happened between providing it to the police and providing it to the Crown is a whole other story. Something got lost and we don’t have it.

THE COURT: Are you talking about a photograph?

MS. LEE: The photograph.

THE COURT: She said she showed it to the police.

MS. LEE: Okay. So the photograph is one thing, again for disclosure, but also the text messages. Our position is that it doesn’t matter how it came to be in the possession of the Crown, the reality is that it is materially important evidence that has an impact on this case and we were entitled. If the Crown was going to, or the police were going to ask the complainant for that evidence then whenever they do that at any point in the case and it is then provided to us, which we are entitled to, then that is disclosure that has an impact on the case that we have to meet.

THE COURT: Let me ask you, is this a text message that was with your client?

MS. LEE: Sorry?

THE COURT: The text message that you’re saying you just got today, was this an exchange between your client and the witness?

MS. LEE: Yes.

THE COURT: So your client had it, right, just like he had these. He didn’t show them to you perhaps.

MS. LEE: Obviously the discussions that I had with my client are privileged.

THE COURT: No, but you are accusing the Crown and you want an adjournment because of new information that just came to light but now what you are telling me is that this “new information” is information your client had all along because he’s texting with the complainant.

MS. LEE: I don’t need to tell Your Honour that the defence has no obligations to …

THE COURT: But you are asking for an adjournment and I am not inclined to give you one is what I’m saying.

MS. LEE: So, Your Honour, this is still new evidence.

THE COURT: How is it new evidence if your client had it all along?

LEE: It’s new disclosure evidence. The Crown is providing it to us.

THE COURT: I’m giving you 20 minutes to talk to your client and prepare your continued cross-examination. This is evidence he had. It’s not new at all. It’s a text message between the two of them. That’s your client. Okay, 20 minutes. Prepare your crossexamination. We are not adjourning this.