





CITATION:
R. v. Turpin, 2011
          ONCA 193



DATE: 20110311



DOCKET: C51697



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Rosenberg and Goudge JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Glen Turpin



Appellant



Frank Addario and Andrew
Furgiuele
,
          for the appellant



Alex
Hrybinsky
, for the respondent



Heard:
February 23, 2011



On appeal from the conviction entered by Justice Myrna L. Lack
          of the Superior Court of Justice on December 2, 2009.



Winkler C.J.O.:



Overview

[1]

The central issue in this appeal concerns the proper
    conduct of a trial.  It engages issues of
    natural justice and the right of a defendant to make full answer and defence.

[2]

The appellant is a police officer with the Durham
    Regional Police Service.  He was charged
    with assault causing bodily harm, contrary to s. 267(b) of the
Criminal Code
and uttering a threat to
    cause bodily harm, contrary to s. 264.1(1)(a) of the
Criminal Code
.  He was tried
    in the Superior Court of Justice without a jury and was convicted on both
    counts.  The appellant appeals his
    conviction and seeks a new trial.

[3]

The main ground of appeal relates to a finding made by
    the trial judge relating to an audio portion of a surveillance recording.  The audio surveillance recording (ASR) was
    made while the appellant had an intoxicated person, Martin Egan (Egan), in
    custody after an arrest.  There were
    words exchanged between the appellant and Egan.  As part of the exchange, the appellant is
    alleged to have made threats to Egan.  The
    appellants position is that the statements he made during the relevant period
    were simply tactical in order to deal with the behaviour of Egan.

[4]

In addition, a transcript of the ASR was used as an aid
    for the purposes of trial and with respect to the
viva voce
evidence of the witnesses, as both the appellant and Egan
    testified.  However, the transcript did
    not contain the part of the ASR in respect of which the trial judge made a
    crucial finding.  All of the parties
    accepted that the ASR was inaudible in respect to that part.  The trial judge re-played the ASR after the
    trial was concluded as part of her deliberations.  Upon doing so, she came to a conclusion as to a
    certain statement made by the appellant.  The finding was materially different from the
    testimony of the appellant as to what he had said.  The finding of the trial judge attributing
    certain words to the appellant provided the basis for her conclusion that the
    appellant was not credible and was fatal to the theory of his defence.  The trial judge did not reconvene the trial to
    permit this statement to be put to the appellant or to allow further evidence
    or argument.

[5]

The appellant submits that because of the manner in
    which the trial judge considered the evidence, and in light of her conclusion
    as to the ASR that was materially different than that accepted by any party at
    the trial, he was effectively denied the opportunity to make full answer and
    defence.  This, the appellant argues,
    amounted to a denial of natural justice and constituted a reversible error in
    principle.  I agree.  I would allow the appeal, set aside the
    conviction, and order a new trial.  My
    reasons follow.

Facts

[6]

On March 12, 2006, the appellant arrested Egan outside
    a bar in Whitby for causing a disturbance.  The appellant and his partner, Police
    Constable Roxanne
Yelle
(P.C.
Yelle
),
    were on duty on the night in question.  In
    the early hours of Sunday morning while on patrol they came upon a commotion in
    a bar district in downtown Whitby.

[7]

When the officers arrived at the scene, a small crowd
    had gathered and Egan and two friends were at the centre of the action.  Egan was intoxicated and behaving in a loud,
    abusive and confrontational manner.  He
    had a cut on his head which he alleged was caused by a bouncer at the bar and
    he insisted that the officers charge the bouncer.  The appellant investigated Egans claim.  The bar staff told the appellant that Egan had
    attacked a bouncer while being removed from the bar.  Egan had called an emergency medical team to
    the location and they were present.

[8]

The appellant asked Egan to leave the scene and go home
    and told him that his complaint could be dealt with the following morning.  Egan became increasingly more agitated and
    vociferous when the appellant sent the emergency medical team away and would
    not charge the bouncer.  When he refused
    to leave and persisted in his outrage, the appellant warned him that if he did
    not leave he would be arrested.  Despite
    the warning, Egan refused to leave and continued swearing and yelling at the
    officers.  His behaviour was described as
    out of control.  Eventually the
    appellant forced Egan to the ground, handcuffed him and arrested him for
    causing a disturbance.  Two other
    officers at the scene arrested one of his two friends.

[9]

The appellant and P.C.
Yelle
drove Egan to the police station.  While
    in the cruiser Egan continued to yell insults, obscenities and racial epithets
    at the police officers and to bang his head against the window.  Before they left the cruiser Egan said something
    to the effect of you wait until I get these handcuffs off.  At trial, Egan admitted that this would give
    the impression that he wanted to fight, but denied that he actually wanted to
    fight with the police.

[10]

It was at the police station that the alleged threat
    and assault took place.  There was an
    audio-video surveillance recording running in the rooms where the relevant
    events occurred.  The system made an
    audio recording (the ASR) and captured the events that took place in a series
    of still images which were put into evidence at trial.  In addition to playing the ASR at trial, a
    transcript of the recording was used as an aid.

[11]

After arriving at the station, Egan was placed in a
    cell and the appellant removed Egans handcuffs.  Egan was resistant while the handcuffs were
    being removed and the appellant had to use force to remove them.  The appellant by his own admission said to
    Egan Im going to punch your teeth right through the back of your head.  As I will discuss more fully below, there was
    some uncertainty at trial about the exact content of this utterance, but there
    was no dispute that at a minimum words to this effect were uttered.

[12]

On two occasions while in the cell at the police
    station the appellant forced Egan to the ground.  On both occasions the appellant had told Egan
    to sit down, and Egan had not done so.  As
    a result of the second grounding, Egan may have struck a bench.  He received a cut above his left eye where he
    wore an eyebrow ring.  As a result of
    this injury, Egan required stitches and the injury later became infected,
    requiring Egan to receive intravenous antibiotics for a month.

[13]

Egan later pleaded guilty to the charge of causing a
    disturbance.  He decided not to press a
    complaint against the appellant relating to the manner of his treatment while
    in custody.  However, approximately two
    years later, as a result of an internal investigation, the appellant was
    charged with uttering a threat to cause bodily harm and assault causing bodily
    harm, in relation to his conduct in respect of Egans detention.

Trial Judgment

[14]

Five witnesses testified at trial.  Egan and P.C.
Yelle
testified for the Crown.  The appellant
    and two expert witnesses testified for the defence.  The two expert witnesses were Doug Ashton
    (Ashton), an instructor in use of force, and Sergeant Bob Elliott, a senior
    member of the Durham Regional Police Service in charge of the use of force
    training section.  The expert witnesses
    gave evidence on police use of force and use of force training.

[15]

In her reasons, the trial judge reviewed the evidence
    of Egan, P.C.
Yelle
and the appellant.  She did not comment on the testimony of the
    expert witnesses.

[16]

The content of the appellants alleged utterance to
    Egan was central to the trial judges decision.  The appellant testified that he told Egan that if he didnt knock it
    off, I was going to punch the teeth through the back of his head.  The appellants explanation for the remark was
    that this was not a threat, but rather a warning that if Egan did not stop his
    aggressive behaviour, the appellant may be required to use more force.  He testified that his utterance was a form of
    tactical communication intended to change the prisoners behaviour.  P.C.
Yelle
proffered
    no evidence in relation to the substance of the statement in question although
    she was present in the cell when it was made.  Nor did Egan testify in relation to the
    wording of the statement.  At the conclusion
    of the trial the trial judge reserved her decision.  In arriving at her decision she re-listened to
    the ASR and found the utterance by the appellant said to constitute the threat to
    be different from the testimony of the appellant, or anyone else, during the
    trial.  In her reasons she said:

I was asked to review the audio carefully in my
    deliberations and make a finding as to what P.C. Turpin [the appellant] said.

I have listened to it many times.  What P.C. Turpin said was, When were off
    camera Im going to punch your teeth right through the back of your head.  Do you understand me? I have no doubt that
    was what he said.

[17]

She used her finding as to what the audio revealed, namely
    that the appellant had said the words When were off camera as opposed to
    if you dont knock it off
,
to assess the
    appellants credibility, stating that the appellant had misrepresented the
    contents of the threat.

[18]

The trial judge then went on to find that the appellant
    was not credible and reject his evidence that the alleged threat was a form of
    tactical communication.  She also rejected
    his evidence that he had pre-emptively grounded Egan to prevent Egan from
    assaulting him.

[19]

Relying on the evidence of P.C.
Yelle
,
    the trial judge stated that she accepted P.C.
Yelles
evidence that the force that he [the appellant] used in putting Mr. Egan
    against the wall and in grounding him the first time was excessive.

[20]

She held that the appellant did not have reasonable
    grounds for uttering the threat or for grounding Egan for the second time in
    the police station.  She found the
    appellant guilty on both counts.

Issues Raised on Appeal

[21]

The appellant raises three grounds of appeal:  1) that the trial judge erred by not allowing
    him to respond to her assessment of the ASR of the appellants utterance; 2)
    that the trial judge erred by failing to consider the testimony of the two
    expert witnesses; and 3) that the trial judge erred by oversimplifying P.C.
Yelles
evidence.  In
    particular, P.C.
Yelle
never said that the appellant
    used excessive force, but rather testified that she was uncomfortable with the
    force that was used and also qualified this statement in several significant respects.

[22]

For the reasons
    set out below, I would dispose of the appeal on the first ground alone.  Hence, it is unnecessary for me to deal with
    the remaining two grounds of appeal advanced by the appellant.

Analysis

[23]

The essence of the appellants main ground of appeal is
    that the trial judge deprived him of the opportunity to make full answer and
    defence with respect to what she thought she heard the appellant say on the ASR.
     There is no doubt that the trial judge
    was asked and was entitled to review the ASR during her deliberations.  The issue that arises, however, is with
    respect to the context in which this review was performed.

[24]

It was accepted by all parties that certain portions of
    the ASR were garbled or inaudible.  To
    this extent, there was no transcription of those portions of the ASR in the
    transcript used as an aid at trial.  The
    effect of the finding by the trial judge is that a part of the ASR that had
    been accepted for the purposes of trial as being inaudible became a critical
    part of the evidence supporting the finding of guilt on the part of the
    appellant.  In my view, this constitutes
    a failure of natural justice in that the appellant had no opportunity to make
    full answer and defence.  By way of
    analogy, it was as if the appellant had a new allegation made against him after
    the trial was completed.

[25]

The precise wording
    of the alleged threat by the appellant to Egan was a significant part of the
    defence theory that the statement was tactical and not a threat.  The appellant testified that he told Egan that
    if you dont knock it off the appellant was going to punch his teeth through
    the back of his head.  This differed from
    the transcript of the ASR that was referred to at trial which only said Im
    going to punch your teeth right through to the back of your head, do you
    understand me.  The knock it off
    portion of the utterance was represented by an inaudible portion of the ASR so
    far as all parties to the trial were concerned.

[26]

In his closing submissions at trial, defence counsel
    summarized the appellants position on the content of the utterance:

[The appellant] says, and I say to you, Your
    Honour, when you listen to the audio, Ive listened to it 20 plus times, you
    cant make out the garble before the words Im going to punch your teeth right
    through the back of your head. Theres a garbled exchange there.  Officer Turpin says, I said if you dont
    stop or dont knock it off, Im going to punch your teeth right through the
    back of your head.

I ask that you find that thats the evidence.  Officer Turpin says, 
this
is a warning, this is not a threat. He was psychologically trying to break the
    behaviour of Mr. Egan.  This is a form of
    tactical communication,
its
use of force through
    words, and its analogous to stop or youll get hurt.

[27]

The appellants version of the alleged threat gave
    credence to the theory that the statement was intended as a form of tactical
    communication aimed at stopping Egans aggressive and resistant behaviour.

[28]

At no time during the trial did anyone raise the prospect
    that the statement may have been When were off camera Im going to punch your
    teeth right through the back of your head.  There was no suggestion by the prosecution or the defence that the inaudible
    part of the ASR contained any other material words than those which the
    appellant testified he uttered.  Indeed,
    the only evidence regarding the utterance other than the ASR was that of the
    appellant.  The real issue for trial was
    not the words themselves but what they were meant to convey.

[29]

The statement ultimately found by the trial judge to
    have been said by the appellant, When were off camera
,
was materially different from the version of the statement put forth by the
    appellant.  It also differed from the
    version of the statement in the transcript of the ASR used at trial.  Neither Egan nor P.C.
Yelle
was questioned about the first part of the utterance.  Egan did not recall the utterance when he was
    first asked about it.  After reviewing
    the transcript of the ASR he recalled the appellant telling him he was going
    to punch my teeth to the back of my head.  He did not remember any other part of the utterance.
P.C.Yelle
gave no
    evidence on the substance of the utterance.  She could not recall what was said when the
    appellant and Egan first entered the interview room.

[30]

The finding of the trial judge on the exact words
    uttered in the part of the ASR regarded as inaudible by the parties led in turn
    to her finding against the appellants credibility, supported a finding of bad
    faith, and, left unanswered, was devastating to the theory of the defence that
    the statement was a warning and not a threat.

[31]

This is not a case where a new theory is being advanced
    on appeal to deal with what might otherwise be construed as an oversight of
    counsel at trial.  It is clear from the
    cross-examination of the expert witness Ashton that the parties, and the trial
    judge, had a consistent position relative to the wording of the alleged threat.  At trial, crown counsel engaged Ashton in a
    line of questioning to determine whether the alleged threatening words could
    ever be a justified use of force.  Initially
    the Crown began questioning Ashton about a statement paraphrased from that
    which appeared in the transcript of the ASR.  Defence counsel objected that the words being
    put to the expert witness were not the words stated in the appellants evidence.  The trial judge agreed.  The trial judge instructed counsel that if
    there is an evidentiary issue on what was said, then the one or more variables
    of whats alleged to have been said should be put to the witness.

[32]

Crown counsel continued the line of questioning by
    putting the appellants version of the statement to Ashton.  The Crown did not go on to test any other
    hypothetical versions of the statement.  In
    fact, no other hypothetical version of the statement was ever put forward by
    either party at trial.  From the conduct
    of counsel at trial it is clear that there was an acceptance by the prosecution,
    defence and the court that there was only one version of the statement being
    contemplated for the purposes of the trial.

[33]

The trial judge ruled correctly that the evidence was
    the
viva voce
testimony of the
    appellant and not the transcript of the ASR.

[34]

The respondent states that it was proper for
    the trial judge to review the ASR in her deliberations.  I do not disagree.  Here, however, the trial judge had already
    made a ruling about the evidence at trial and was aware of the positions taken
    by the parties with respect to the quality of the ASR.  Any further review by the trial judge had to
    be conducted in that context.

[35]

It is clear that there are proper procedures to be
    followed with respect to audio or video evidence.  In
R.
v.
Nikolovski
,
[1996] 3 S.C.R. 1197,
Cory J., writing for the majority, said at
paras
.
    31-32:

The jury or
trial judge
sitting alone must be able to review the videotape during their deliberations.  However, the viewing equipment used at that
    time should be the same or similar to that used during the trial.  I would think that very often
triers
of fact will want to review the tape on more than
    one occasion.

A trial judge sitting alone must be subject to the
    same cautions and directions as a jury in considering videotape evidence of
    identification.  It would be helpful if,
    after reviewing the tape, the trial judge indicated that he or she was
    impressed with its clarity and quality to the extent that a finding of identity
    could be based upon it.  This courtesy
    would permit Crown or particularly defence counsel to call, for example, expert
    evidence as to the quality of the tape or evidence as to any changes in
    appearance of the accused between the taking of the videotape and the trial and
    to prepare submissions pertaining to identification based on the tape.

[36]

Nikolovski
does not stand for the proposition that a trial judge can listen to an audio recording,
    arrive at a view of the evidence which varies from the
viva voce
testimony of a witness and make a finding which
    undermines the credibility of the witness on that point without putting the
    contrary view to the witness.  Applying
Nikolovski

to these circumstances would require
    the trial judge, after reviewing the ASR and reaching the conclusion she did as
    to the evidence, to advise the parties and offer an opportunity to have the
    trial re-opened.

[37]

In fact, when the ASR and the accompanying still images
    were played at trial, the entire recording was not played.  The trial judge asked counsel whether they
    anticipated that she would watch beyond the point where they stopped when she
    re-played the recording during her deliberations.  Counsel did not object, but the trial judge
    specifically indicated to them that she would not play more of the recording
    unless she told them, and gave them an opportunity to address any issues that
    arose.  This shows that the trial judge
    turned her mind to the correct procedure  that she should have alerted counsel
    to any unanticipated issues that arose when she re-played the recording.

[38]

The respondent advanced the argument that there was no
    reversible error in that the trial judge did nothing more than a jury would, or
    could, have done with respect to the ASR and, in effect, we would never know
    what they thought they heard on the inaudible portion of the ASR.  Further, it was up to appellant to deal with
    the issue of the inaudibility of the ASR.  I cannot accede to these submissions.  Dealing with them in reverse order, the
    accused at a trial is entitled to know the case that must be met.  If there is no evidence adduced by the Crown
    on a certain point, no response is required from an accused on that point.  Here, no evidence was adduced by the Crown as
    to what was said on the inaudible portion of the ASR.  Further, after the appellant testified as to
    what he had said, the Crown did not attempt to impeach that testimony by
    playing the ASR and suggesting that it revealed different words.

[39]

Dealing with the respondents first point, this was not
    a jury trial.  In our system, juries in
    criminal cases do not give reasons for their decisions.  However, trial judges do and we cannot ignore
    the fact that in this case the trial judges reasons disclose that she relied
    upon a version of the facts with which the appellant was never confronted and
    which, in the result, seriously undermined his credibility in the trial judges
    eyes.

[40]

The appellants testimony regarding the substance of
    his statement was the only version of the statement put forward at trial.  No other hypothetical was advanced that
    included a different version of the words preceding the statement in the transcript
    of the ASR.  The meaning to be attributed
    to the words was the real issue at trial.  The appellants evidence was used for the purposes
    of examining the expert witnesses and for argument.  The entire trial proceeded on the premise that
    the words spoken were those testified to by the appellant and that the ASR was
    inaudible in this respect.

[41]

The respondent also submits that the appellant was not
    prejudiced because there was nothing that he could have done had the trial judges
    view of the appellants utterance on the ASR been put to him at trial.  I disagree.  There were various options open to the
    appellant had he been given the opportunity to respond.  The appellant could have been re-called to the
    stand, called an expert witness to enhance the audio ASR, or argued that the
    trial judges finding could not be correct because it was not a credible
    interpretation in that there was nowhere on the premises where they would be
    off camera, to mention but a few.

[42]

In my view, the respondents argument in this respect is
    flawed because there is, simply put, no way around the fact that the appellant
    had no opportunity to respond to the trial judges interpretation as to what
    the appellant said on the ASR.

[43]

The respondents final submission is that it would have
    been unusual for a judge to reopen the trial after she had listened to the ASR.
     I agree that it would have been unusual
    to have done so.  However, she had no
    other recourse given the impact of what she felt she heard on the recording when
    up to that point the trial had proceeded on the assumption the recording was
    inaudible.  This was an unusual situation
    because the ASR was of poor quality.  What
    the trial judge heard on the ASR had a significant impact on the appellants
    credibility and the theory of his case.  Fairness
    demanded that he be afforded an opportunity to meet the case being made out
    against him.  Sometimes unusual turns of
    events in a trial require a novel approach if justice is to be done.

[44]

As the Supreme Court of Canada stated in
Charkaoui
v.
Canada (Citizenship and Immigration)
,
    [2007] 1 S.C.R. 350, at
para
. 29, a fair judicial
    process includes a right to a hearing which entails the
right to know the case put against one
, and the
right to answer that case
 (emphasis in
    original).  The appellant in the present
    case did not know the case put against him until he read the reasons for
    judgment.

[45]

In proceeding in the manner that she did, the trial
    judge denied the appellant the opportunity to respond to her finding that the ASR
    revealed that the appellant said to Egan, When we are off camera...
.
This led to her
    rejection of his testimony that he said Knock it off or..., her finding that
    the appellant was not a credible witness, and ultimately led to her rejection
    of the theory of the appellants defence that his statement to Egan was
    tactical and not a threat, and that his second grounding was to prevent an
    assault by Egan.  The appellant was
    denied the opportunity to make full answer and defence.  The first inkling that there was a different
    version of what his utterance to Egan was appeared in the trial judges reasons
    for judgment convicting the appellant as charged.  In the interest of fairness, the trial judges
    views as to the content of the ASR had to be put to the appellant.  This was not done.  Accordingly, it should not have been used against
    him.  The appellant suffered prejudice in
    the conduct of his defence.  There has
    been a denial of natural justice to the appellant which amounts to a reversible
    error in principle.

Conclusion

[46]

For the above reasons, I would allow the appeal, set
    aside the conviction, and order a new trial.

RELEASED:  March 11, 2011 (W.W.)


W. Winkler C.J.O.

I agree M. Rosenberg
    J.A.

I agree S.T. Goudge
    J.A.


