Constable Glen Turpin v. Durham Regional Police Service, 2000 CanLII 45063

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

CONSTABLE GLEN TURPIN Appellant

-and-

DURHAM REGIONAL POLICE SERVICE Respondent

-and-

RODERICK TAMNEY Complainant

DECISION

Panel: G. Douglas Smith, Member Sam Cancilla, Member

Hearing Date: Tuesday, September 14, 1999 Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, Ontario M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198

Presiding Members: G. Douglas Smith, Member Sam Cancilla, Member

Appearances: Harry G. Black, Counsel for the Appellant David Sims, Counsel for the Respondent Roderick Tamney, Complainant

Hearing Date: Tuesday, September 14, 1999

1. This is an appeal from a conviction on one count of discreditable conduct against Constable Glen Turpin for unlawful or unnecessary exercise of authority contrary to section 1(g)(ii) of R.R.O. 1990, Reg. 927 (the “Code”).

2. This conviction was made against Constable Turpin by Inspector Greg Mills (the “Hearing Officer”) at a disciplinary proceeding held on April 29, 1998. There is no appeal regarding the sentencing.

Background:

1. Constable Glen Turpin responded to a call about a missing 15-year old boy (G.C.) early on the morning of July 29, 1997.

2. He attended the parent’s residence about 5:00 a.m. Mr. and Mrs. C were not at home. Mr. C. was away on business and Mrs. C was working. Constable Turpin spoke to a 23 year old man (R.C.) who said that the missing boy was his younger brother.

3. R.C. told Constable Turpin that G.C. had not returned home at the expected time of 10:30 p.m., the previous evening. Fearing for his brother’s safety he contacted his mother at work.

4. They believed that G.C. had been with a friend (Dale Tamney) earlier in the day, and that he may be still at the friend’s residence or the Tamneys might know where he was. Between 1:30 a.m. and 5:00 a.m. R.C. and his mother made at least four calls to the residence of Roderick and Linda Tamney seeking information concerning the whereabouts of G.C.

5. Mrs. Tamney responded to one of the calls stating that G.C. was not there and she did not know where he was. Mr. Tamney offered no assistance as to where G.C. might be. He was ill tempered, irritated by the disturbance and number of telephone calls and responded in a rude manner, using foul language.

6. After receiving this information, Constable Turpin decided to telephone the Tamney residence to seek their assistance. Mr. Tamney’s response was hostile and uncooperative. In evidence given at the hearing Constable Turpin stated that Mr. Tamney said “What the fuck are you doing calling me? I’m tired of getting phone calls. I’m trying to get some sleep. Why don’t you guys fuck off?”

7. Constable Turpin testified that when he tried to explain the reason for the phone call Mr. Tamney responded “It hasn’t been 24 hours. Don’t you know your fucking job?” Constable Turpin said he would have to attend the Tamney residence to start his investigation. Mr. Tamney’s response was “If you want to come down and talk to me, go ahead you fucking ass-hole.”

8. Constable Turpin drove to the Tamney residence. Mrs. Tamney answered the door and agreed to have her son Dale speak to him. She left to get her son and Constable Turpin stepped onto the enclosed porch. He was immediately confronted by Roderick Tamney who demanded that Constable Turpin leave.

9. Mr. Tamney told Constable Turpin that G.C. was not at his house and that the officer would need a warrant if he intended to enter the residence. Constable Turpin advised Mr. Tamney that he was not leaving until he spoke to Dale and that if he interfered he could be arrested for obstructing police. A heated verbal exchange took place.

10. Mr. Tamney testified that Constable Turpin grabbed his arm causing him to lose his balance and fall over some paint cans. He stated that he struck his back on a brick window ledge suffering some injury. Constable Turpin then entered the residence.

11. Constable Turpin spoke to Dale Tamney. As he was leaving, Mr. Tamney requested the officer's name and badge number. He called 911 for assistance.

12. Constable Turpin left carrying on with his duties. He did not report the incident. The missing boy was subsequently found and returned home.

The Allegations:

A complaint was filed by Mr. Tamney. Following an investigation Constable Turpin was charged with two disciplinary offences. Specifically:

1. He was alleged to have committed misconduct in that he used unnecessary violence to a person contacted in the execution of duty, thereby committing the offence of unlawful or unnecessary exercise of authority, contrary to Part V, clause 74(a) of the Police Services Act, Revised Statutes of Ontario 1990, c. P.15, as amended, and clause 1(g)(ii) of the Schedule Code of Conduct, Revised Regulations of Ontario 1990, Regulation 927, under the Police Services Act

2. It was further alleged that he committed misconduct in that he failed to report a matter that was his duty to report, thereby committing the offence of neglect of duty, contrary to Part V, clause 74(a) of the Police Services Act, Revised Statutes of Ontario 1990, c. P.15, as amended, and clause 1(c)(vi) of the Schedule Code of Conduct, Revised Regulations of Ontario 1990, Regulation 927, under the Police Services Act.

The Hearing:

1. The disciplinary hearing took place on April 29, 1998. Constable Turpin pled not guilty to both charges.

2. The Hearing Officer heard testimony from Roderick and Linda Tamney, R.C., Constable Turpin and Sergeant Mullen. Sixteen exhibits were received.

3. Harry Black, Q.C. acted as counsel for Constable Turpin, and Staff Sergeant R.

4. Chapman represented the Durham Regional Police Service (the "Service").

5. Mr. Black sought to have the charges against Constable Turpin dismissed suggesting that “the credibility of Mr. Tamney was in doubt, as well as his state of mind and the fit of temper that he was in, and tripping over the paint cans, he’s the author of his own misfortune in so far as those bruises, and I must say, I am very dubious of the claims”.

6. Mr. Black argued that Constable Turpin had the right to be at the Tamney residence to ask questions. He stated that Mr. Tamney was interfering with Constable Turpin’s ability to receive information. Mr. Black suggested that Mr. Tamney had a prejudice against police officers.

7. Mr. Black argued that Constable Turpin used “reasonable force. He doesn’t mean for him to trip. He doesn’t mean for him to hurt himself, or to bruise himself.”

8. Staff Sergeant Chapman on behalf of the Durham Regional Police Service stated “that the credibility of the witnesses is an issue”.

9. He further noted that “he (Constable Turpin) doesn’t disengage from Mr. Tamney. He doesn’t know whether Mrs. Tamney is going to come outside and talk to him. Yet he uses force to push Mr. Tamney aside. Mr. Tamney trips over the paint cans, causes some bruises to his body, and Constable Turpin continues and enters directly into the main dwelling house“.

11. Staff Sergeant Chapman also stated that the Service regulations require written reports to be submitted when force is used. However, he acknowledged that in some circumstances officers do not submit them.

12. Mr. Tamney stated “this man hammered on my door, that was an angry police officer who was going to trammel, step over my rights as a citizen because he’s a police officer. I think you have to obey the law to the letter of the law. And you did not do that. You endangered my life because I spoke sharply to you on the phone.”

13. Constable Turpin was found guilty of the charge that he used unnecessary violence to a person contacted in the execution of duty. He was found not guilty of the charge of failing to report a matter that was his duty to report.

14. The written decision was given in Oshawa on May 26, 1998. A joint submission by the defence and prosecution was presented. Sentencing took place July 30, 1998

Appeal:

1. Mr. Black challenges the decision of the Hearing Officer on four main points.

2. Mr. Black argued that the Hearing Officer erred in finding that propriety of the Appellant’s use of force hinged on the issue of whether Provincial Constable Turpin’s brief entry into the residence was lawful.

3. He argued that the Hearing Officer created an artificial distinction between the consent given to Constable Turpin to enter the porch as separate from the mainliving area.

4. He suggested that the Hearing Officer failed to appreciate that Constable Turpin was an invitee with a right to be and remain in the residence.

5. Finally, he stated that the Hearing Officer erred in his recitation of the evidence. He pointed to the Appellant’s justification for entering the porch area (i.e. that he had been invited inside).

6. Mr. Black implied that the testimony of Linda Tamney was influenced by her husband. He also suggested that we should not second-guess the police officer in his view that the invitation by Mrs. Tamney was not limited to the porch.

7. He stated that the parents of G.C. needed assistance and that Mrs. C. commended the police actions in the matter.

8. Mr. Black relied on the following authorities:

Magda and Sheppard (Ont. Div. Ct., 23 Oct., 1992)

Tomie-Gallant v. Board of Inquiry (Ont. Div. Ct., 21 Aug., 1996)

Gemmiti and Peterborough Community Police (Hearing Officer R.J. Fitches,

Dec. 20, 1998)

Gibbs v. Leonard (Ont. Bd. Inq., 24 March, 1998)

Shockness v. Gillespie (Ont. Bd. Inq., 27 Sept., 1994)

Bobb v. Nichols (Metro Toronto Police Complaints Board, 24 Feb., 1984)

R. v. Stroble and Madden (Ont. Prov. Ct., 26 March, 1992)

R. v. Stenning 1970 CanLII 12 (SCC), [1970], S.C.R. 631 (S.C.C.)

Waugh v. Hodges (Metro Toronto Police Complaints Board, 23 Jan., 1985)

Lang v. Ramsay (1992), 1992 CanLII 7567 (ON CTGD), 11 O.R. (3d) 190 (Ont. Div. Ct.)

R. v. Godoy (1997), 1997 CanLII 557 (ON CA), 115 C.C.C. (3d) 272 (Ont. C.A.); affirmed (1998)

S.C.J. No. 85

Harper v. R. 1982 CanLII 11 (SCC), [1982], 1 S.C.R.2 (S.C.C.)

Gloucester Police Force and Tremblay (1983), 1983 CanLII 1736 (ON HCJ), 42 O.R. (2d) 395 (Ont. Div. Ct.)

Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R.

(2d) 447 (Ont. Div. Ct.)

Thornley (1981), 72 Cr. App. R. 362 (C.A.)

9. The Appellant requested that the finding of misconduct be set aside.

Respondents Position:

10. Mr. David Sims for the Respondent, agreed with Counsel for the Appellant’s description of the nature of the disciplinary charges against Constable Turpin, and the findings of the Hearing Officer outlined in paragraphs 1 to 5, inclusive, of the Appellant’s Factum. The Respondent generally accepted the Appellant’s description of the facts of what transpired during the early morning hours of July 29, 1997.

11. The Respondent further acknowledged that the Appellant has accurately paraphrased the portions of the evidence of various witnesses upon which he relied in paragraphs 6 to 90, inclusive, of his Factum. However, the Respondent did not accept the inferences which the Appellant wished to draw from selected passages.

12. Mr. Sims’ raised a number of questions:

• Was there sufficient clear and convincing evidence, independent of the evidence of Roderick Tamney, to support the Hearing Officer’s findings?

• Did the Hearing Officer draw any inferences from his findings of fact? If so were such inferences improperly drawn?

• Did the Hearing Officer misdirect himself as to any legal or factual issue?

• Is the Appellant’s legal position correct when he states that the issue in this appeal is not one of lawfulness, but the level of force needed to respond to the situation?

13. Mr. Sims noted that the Commission has consistently held that it should not interfere with a Hearing Officer’s decision unless the Hearing Officer made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence or drew erroneous conclusions from the evidence. Williams and Ontario Provincial Police (1995), 2 O.P.R. 1047 (O.C.C.P.S.). The Respondent submits that the Hearing Officer did none of the above.

14. Mr. Sims pointed out that even if Mr. Tamney’s testimony is discounted there is clear and ample evidence to support the Hearing Officer’s findings, including the evidence of Constable Turpin. He stated that the Appellant misapprehended his right to enter the Tamney house especially after being told to leave.

15. Mr. Sims submitted that a police officer has the right to enter premises without a warrant only in limited circumstances. These are:

16. With the occupants unrevoked consent. R. v. Thomas (1991), 1991 CanLII 2736 (NL CA), 67 C.C.C. (3d) 81 (Nfld. C.A.); affirmed (1993), 1993 CanLII 117 (SCC), 78 C.C.C. (3d) 575 (S.C.C.)

17. In response to an “unknown trouble” 911 call where police officers have a reasonable belief that someone inside is in serious distress. R. v. Godoy, supra

18. To make an arrest

a) In cases of hot pursuit or where exigent circumstances exist;

b) the officer has reasonable grounds to believe that the person sought is within the premises;

c) proper announcement is made;

d) the officer believes reasonable grounds for arrest exist; and

e) objectively speaking, reasonable and probable grounds for arrest exist. R. v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129 (S.C.C.)

16. Counsel for the Respondent argued that the circumstances of the morning of July 29, 1997 called for disengagement on Constable Turpin’s part, and that he should not have used any force whatsoever against Mr. Tamney. If in doubt, he should have contacted his superior for guidance as to other alternatives. In both respects Constable Turpin was not professional in his behavior.

17. Mr. Sims took issue with counsel for the Appellant’s statement that the issue at hand does not depend upon the lawfulness of the conduct to the situation. Mr. Sims’ position was that if the officer’s conduct was unlawful in the first place that any use of force in pursuit of the unlawful objective (i.e. entry into the Tamney premises) was prima facie excessive or unnecessary.

18. Mr. Sims stated that noble cause has never been accepted as a lawful defence. He questioned the Appellant’s suggestion that Constable Turpin was an invitee. He pointed out that even if Constable Turpin had been invited or had received an implied invitation to enter the porch it was not a license to enter the main part of the house. Further, any such permission was revoked by Mr. Tamney. Mr. Sims concluded with the statement that “even if Constable Turpin was an invitee, he had no right to lay his hands on Mr. Tamney”.

19. In support of these arguments Mr. Sims also cited:

Hillen and Pettigrew v. I.C.I. Limited, [1936] A.C. 65 (H.L.)

C.P.R v. McCrindle, 1956 CanLII 56 (SCC), [1956] S.C.R. 473 (S.C.C.)

R. v. Kephart (1988), 44 C.C.C.(3d) (Alta. C.A.)

Stephens v. Corcoran (1965), 1965 CanLII 210 (ON HCJ), 65 D.L.R. (2d) 407 (Ont. H.C.)

R. v. Stenning, supra.

Cullen v. Rice (1981), 15 C.C.L.T. 180 (Alta. C.A.)

Fletcher v. Manitoba Public Insurance Co. (1990), 1990 CanLII 59 (SCC), 3 S.C.R. 191 (S.C.C.)

Thornley, supra.

Mowers and Hamilton-Wentworth Regional Police Service (O.C.C.P.S.,

18 March, 1999)

20. Mr. Sims requested the appeal be dismissed with costs.

Complainants Position:

21. Roderick Tamney presented a written brief describing his concerns.

22. He acknowledged using sharp language on the telephone with Constable Turpin. He stated that Constable Turpin and the "C" family were repeatedly told the missing boy was not at his residence and he did not know where he was. He noted that G.C. had not been at his house that day.

23. He also disputed the location where he and Constable Turpin first met. Mr. Tamney said that the police officer was on his front step and not inside the home. Mr. Tamney stated that he never gave permission to Constable Turpin to enter. Further, he requested that the Constable leave almost immediately. Mr. Tamney claimed that he did not touch Constable Turpin before he was grabbed by the officer.

24. He regretted cursing at the police officer but says he only did so after being cruelly assaulted. He described the encounter explaining that in his opinion Constable Turpin was angry about the telephone conversation they had earlier. Mr. Tamney said that the violence against him was not to restrain but to inflict pain.

25. He says Constable Turpin threatened to take him to the police station dressed only in his underwear. He claims that Constable Turpin declined to give him his name and badge number.

26. He stated that when Constable Turpin finally learned of the whereabouts of the missing boy he only left a message for him on an answering machine.

27. Mr. Tamney suggested that G.C. was in a romantic tryst the night of the incident in question and was never in any danger.

28. Mr. Tamney asked that it be noted that the Service routinely ignored the law even during the disciplinary hearing. He stated that the Hearing Officer constantly hindered his questioning.

Decision:

29. This appeal deals with an issue that is a basic cornerstone of our rights and freedoms.

30. Does a person in their home have the right to privacy free from unlawful or unnecessary exercise of authority and force? More precisely, does a police officer during the course of an investigation for a missing person have the right of entry into a private dwelling?

31. The Canadian Charter of Rights and Freedoms states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search OR seizure

32. Police officers have a duty to investigate crimes and preserve the peace. Specifically, section 42 of the Police Services Act provides:

42(1) Duties of a police officer include,

a) preserving the peace;

b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;

c) assisting victims of crime;

d) apprehending criminals and other offenders and others who may be lawfully taken into custody;

e) laying charges and participating in prosecutions;

f) performing the lawful duties that the chief of police assigns;

g) in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.) enforcing municipal by-laws;

h) completing the prescribed training.

(2) A police officer has the authority to act as such throughout Ontario. (3) A police officer has the powers and duties ascribed to a constable at common law.

33. To assist in these responsibilities, police officers are given certain extraordinary powers to use force, conduct searches and effect arrests.

34. An example of such authority can be found in the Provincial Offences Act R.S.O. 1990, C.P.33, as amended which gives police officers certain protections when enforcing provincial legislation. Section 146(1) states: “Every police officer is, if he or she acts on reasonable and probable grounds, justified in using as much force as is necessary to do what the officer is required or authorized by law to do”.

35. As well, section 25(1) of the Criminal Code, R.S.C. 1985, C.C.46, as amended states:

36. (1) Every one who is required or authorized by law to do anything

in the administration or enforcement of the law (a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose

36. Such extraordinary powers are not unlimited. They must be exercised within the strict limits of the law. This includes respecting the rights of individuals set out in the Charter. Consequences can arise if these requirements are not respected. For example, section 26 of the Criminal Code reads:

37. Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

38. It is also a disciplinary offence for a police officer to abuse their authority. Specifically, section 1(9) of the Code makes it a punishable infraction for a police officer to unlawfully or unnecessarily exercise authority. This is defined as:

i) without good and sufficient cause makes an unlawful or unnecessary arrest;

ii) uses any unnecessary violence to a prisoner or other person contacted in the execution of duty, or

ii) is uncivil to a member of the public.

38. The allegation in this case is that Constable Turpin violated section 8(g)(ii) by his application of force against Mr. Tamney

39. What are the facts? In this case a 29-year old first class constable was responding to a call for aid from the family of a missing boy. The officer began his investigation at a logical starting point - the boy’s last known location. He was clearly performing his duty.

40. We note in the evidence presented that immediately prior to attending at the Tamney residence, Constable Turpin spoke with Mr. Tamney by telephone. Mr. Tamney, used vulgar language, was rude, uncooperative, and belligerent. Constable Turpin knew he would encounter a hostile resident.

41. Both the Appellant and Respondent agree, that when the officer arrived at the residence he properly announced himself and received permission from Mrs. Tamney, either directly or by implication, to enter the porch. He had lawful authority to be there. However, he was almost immediately confronted by a partially dressed Mr. Tamney who forbid him to enter any further. Any permission which he may have had to be on the premises ceased to exist.

42. An altercation then took place between an irate homeowner who feared his sleep, privacy and freedom were being disturbed, and a police officer who wanted to do his job. Constable Turpin wished to proceed into the main part of the house to speak with the son and his mother who might be able to assist him. He believed that Mr. Tamney stood in his way and was obstructing him from carrying out his duty.

43. Constable Turpin, by his own admission was not threatened or physically touched by the homeowner. Constable Turpin in his words did not feel endangered. The police officer did not believe that the missing boy was in the house in immediate danger or serious distress. There was no evidence that any crime had taken place or that any crime was taking place. The officer was not in hot pursuit of a suspect and there were no exigent circumstances.

44. Despite these facts Constable Turpin, cautioned Mr. Tamney to behave and when he did not grabbed his wrist and pushed him. This caused Mr. Tamney to trip over some paint cans and fall against a window ledge. Constable Turpin then proceeded to enter the main part of the Tamney home to interview Dale and Linda Tamney.

45. On the facts presented we accept the hearing officer's conclusion that Constable Turpin had no legal authority to leave the porch and enter the residence. We can find no pressing requirement that should have caused him to use force against Mr. Tamney. He had other options. He could have disengaged, stepped back outside, called a superior officer for advice, or returned later with a warrant if necessary.

46. Constable Turpin was not a new or inexperienced police officer. He was a 9-year veteran of the Durham Regional Police Service. In particular, we note that he holds a black belt in martial arts and is fully trained in the use of force. Further from 1994 to 1996 he was seconded to the Police Learning Centre as an assistant in use of force training. In other words, he trained other police officers on how to respond to such situations for almost two years.

47. We acknowledge that Constable Turpin was attempting to perform his duty. Further, it is evident that Mr. Tamney was rude, vulgar, offensive and uncooperative. Clearly, this must have been frustrating. However, that being said, none of this was justification for unlawful entry to a private dwelling or the application of any force. Further, there are no exceptional circumstances in this case which might cause us to find otherwise.

48. Mr. Black suggested that there was insufficient credible testimony for the Hearing Officer to conclude that there was clear and convincing evidence of misconduct. He argued that it is not up to the Hearing Officer to go beyond the role of fact finder to that of policy maker. He further suggested that the fact finder must be careful to examine the questioned conduct through the eyes of the officer and not apply standards of civil liability to disciplinary matters.

49. We have examined the record of the disciplinary proceeding. It is evident to us that the Hearing Officer heard evidence from all relevant witnesses providing opportunity for cross-examination. The Hearing Officer weighed the evidence of the witnesses for credibility observing their demeanour and composure in examination-in-chief and in cross-examination.

50. As the Commission stated in Williams and

Ontario Provincial Police at page 1058.

Our role or function in such maters is not to second guess the decision of the adjudicator. In certain limited cases it would be open to us to reach a different conclusion from the trier of fact. However that must be based on the strongest ground. In other words, there can be no other determination than the conclusion of the adjudicator, as to the credibility of witnesses, cannot be reasonably accepted.

51. We find no reason to reject the finding of the Hearing Officer with respect to the weight and value to be assigned to the testimony of the various witnesses.

52. Further, the Hearing Officer listened to argument in detail from both counsels. He reviewed the stated case authorities relied on by both counsel. The Hearing Officer’s decision contains no serious misunderstandings of either the relevant statutory or common law. Overall, we find that his finding of guilt was reasonable, supported by law, and based on an appropriate evidentiary foundation.

53. For the above noted reasons we dismiss the appeal against conviction.

54. Mr. Sims for the Respondent was seeking an award of costs. This Commission has no authority to grant such costs.

DATED THIS 20TH DAY OF JANUARY, 2000.

G. Douglas Smith Member, OCCPS

Sam Cancilla Member, OCCPS