R. v. Turpin, 2011 ONCA 193
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.
Overview
1The 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.
2The 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.
3The 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 appellant’s position is that the statements he made during the relevant period were simply tactical in order to deal with the behaviour of Egan.
4In 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.
5The 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
6On 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.
7When 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 Egan’s 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.
8The 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.
9The 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.
10It 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.
11After arriving at the station, Egan was placed in a cell and the appellant removed Egan’s 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 “I’m 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.
12On 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.
13Egan 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 Egan’s detention.
Trial Judgment
14Five 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.
15In 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.
16The content of the appellant’s alleged utterance to Egan was central to the trial judge’s decision. The appellant testified that he told Egan that “if he didn’t knock it off, I was going to punch the teeth through the back of his head.” The appellant’s 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 prisoner’s 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 we’re off camera I’m 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.
17She used her finding as to what the audio revealed, namely that the appellant had said the words “When we’re off camera…” as opposed to “if you don’t knock it off…”, to assess the appellant’s credibility, stating that the appellant had “misrepresented the contents of the threat”.
18The 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.
19Relying on the evidence of P.C. Yelle, the trial judge stated that she accepted “P.C. Yelle’s 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.”
20She 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
21The 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 appellant’s 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. Yelle’s 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.
22For 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
23The essence of the appellant’s 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.
24It 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.
25The 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 don’t 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 “I’m 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.
26In his closing submissions at trial, defence counsel summarized the appellant’s position on the content of the utterance:
[The appellant] says, and I say to you, Your Honour, when you listen to the audio, I’ve listened to it 20 plus times, you can’t make out the garble before the words “I’m going to punch your teeth right through the back of your head.” There’s a garbled exchange there. Officer Turpin says, “I said if you don’t stop or don’t knock it off, I’m going to punch your teeth right through the back of your head.”
I ask that you find that that’s 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, it’s use of force through words, and it’s analogous to “stop or you’ll get hurt.”
27The appellant’s version of the alleged threat gave credence to the theory that the statement was intended as a form of “tactical communication” aimed at stopping Egan’s aggressive and resistant behaviour.
28At no time during the trial did anyone raise the prospect that the statement may have been “When we’re off camera I’m 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.
29The statement ultimately found by the trial judge to have been said by the appellant, “When we’re 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.
30The 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 appellant’s 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.
31This 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 appellant’s 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 what’s alleged to have been said should be put to the witness.”
32Crown counsel continued the line of questioning by putting the appellant’s 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.
33The trial judge ruled correctly that the evidence was the viva voce testimony of the appellant and not the transcript of the ASR.
34The 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.
35It is clear that there are proper procedures to be followed with respect to audio or video evidence. In R. v. Nikolovski, 1996 CanLII 158 (SCC), [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.
36Nikolovski 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.
37In 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.
38The 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.
39Dealing with the respondent’s 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 judge’s 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 judge’s eyes.
40The appellant’s 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 appellant’s 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.
41The respondent also submits that the appellant was not prejudiced because there was nothing that he could have done had the trial judge’s view of the appellant’s 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 judge’s 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.
42In my view, the respondent’s 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 judge’s interpretation as to what the appellant said on the ASR.
43The respondent’s 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 appellant’s 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.
44As the Supreme Court of Canada stated in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [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.
45In 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 appellant’s 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 judge’s reasons for judgment convicting the appellant as charged. In the interest of fairness, the trial judge’s 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
46For 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.”
