Turpin v. Durham Regional Police Service, 2016 CanLII 13878

ONTARIO CIVILIAN POLICE COMMISSION

DATE: 2016-02-08

FILE: OCPC-15-0655

CASE NAME: GLEN TURPIN AND THE DURHAM REGIONAL POLICE SERVICE

IN THE MATTER OF AN APPEAL UNDER SECTION 87(1) OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

CONSTABLE GLEN TURPIN #722 APPELLANT

-and-

THE DURHAM REGIONAL POLICE SERVICE RESPONDENT

DECISION

Panel: D. Stephen Jovanovic, Associate Chair Marie Fortier, Member Katie Osborne, Member

Hearing Location: Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3

Appearances: Frank Addario, Andrew Guaglio, Counsel for the Appellant Ian B. Johnstone, Alex J. Sinclair, Patrick Simon, Counsel for the Respondent

Introduction

1. This is an Appeal by Constable Glen Turpin (the "Appellant") from his conviction, following a guilty plea on one count of Discreditable Conduct under section 2(1)(a)(ix) of the Schedule Code of Conduct (the "Code") in the regulation to the Police Services Act, R.S.O. 1990, c.P.15 (the P.S.A.), in that he "is guilty of a criminal offence that is an indictable offence punishable upon summary conviction".

2. The Appellant was also convicted of one charge under the Code of Unlawful or Unnecessary Exercise of Authority and a second charge of Discreditable Conduct. There is no Appeal from these convictions.

3. The Appellant also appeals the penalty decision of Hearing Officer Elbers dated September 23, 2015, dismissing him from the Durham Regional Police Service (the "Service") following these convictions.

Decision

4. Pursuant to section 87(8)(a) of the P.S.A., the Commission confirms the conviction and the decision dismissing the Appellant from the Service.

Background

5. The history of this matter is convoluted and for a disciplinary proceeding almost ancient, dating back to 2006. Since that time, the events giving rise to the convictions have been considered by a jury, at least seven judges and three Hearing Officers under the P.S.A. The Appellant has been under suspension from the Service with pay since May 2008.

The following is a brief summary of this history.

6. In March 2006, the Appellant was involved in the arrest of Martin Egan, following a disturbance at a bar in Whitby. While at the station following the arrest, and after an exchange of words with Egan, the Appellant said to him, "I am going to punch your teeth right through the back of your head." The Appellant also "grounded" Egan twice at the station, which resulted in Egan sustaining a cut above his left eye.

7. In June 2007, the Appellant responded to a call regarding another disturbance and fight in Whitby. He found three intoxicated individuals at the scene, one of whom, Ryan Schwalm, he arrested for causing a disturbance and for assault with intent to resist arrest. On the way to the station, Schwalm was belligerent and repeatedly struck his head inside the police car. Shortly after arriving at the station, the Appellant "grounded" him in his cell, a move which resulted in Schwalm having two black eyes.

8. The Appellant was charged criminally for both the Egan and Schwalm incidents. The Appellant was acquitted following a jury trial of the assault charges arising from the Schwalm incident. The Appellant was, however, convicted by Justice Lack of assault and uttering threats to cause bodily harm to Egan on December 2, 2009. He was sentenced in March 2010 to a suspended sentence and probation.

9. In addition to the criminal proceedings, as a result of the Egan and Schwalm incidents and the criminal conviction, the Service initiated P.S.A. disciplinary proceedings against the Appellant.

10. An Amended Notice to Attend a Hearing pursuant to the P.S.A., dated March 17, 2010, was served on the Appellant, setting out five counts of alleged misconduct. A synopsis of the charges is as follows:

Count 1 (Egan): Unlawful or Unnecessary Exercise of Authority (use of unnecessary force) Count 2 (Egan): Discreditable Conduct (threatening bodily harm) Count 3 (Schwalm): Unlawful or Unnecessary Exercise of Authority (use of unnecessary force) Count 4 (Schwalm): Unlawful or Unnecessary Exercise of Authority (use of unnecessary force) Count 5 (Egan): Discreditable Conduct (flowing from convictions for assault causing bodily harm and uttering a threat to cause bodily harm)

11. The Appellant appealed his criminal convictions. Before the Appeal was heard, he appeared before Hearing Officer Finn on July 20, 2010 to deal with the P.S.A. Counts 1 through 5. Negotiations between defence counsel and the P.S.A. prosecutor ensued, resulting in an agreement not to present evidence on Counts 1 and 2 and a plea of guilty to Count 5. At the time, Hearing Officer Finn dismissed Counts 1 and 2. A Motion to quash Counts 3 and 4 as constituting an abuse of process was also brought, but dismissed in October 2010.

12. The decision of Justice Lack convicting the Appellant of the two criminal charges was set aside by the Court of Appeal on March 11, 2011, and a new trial ordered. These charges then came before Justice Salmers on December 1, 2011. The Appellant pleaded guilty to one count of uttering a threat to cause bodily harm in exchange for the Crown withdrawing the assault causing bodily harm charge. The Appellant then received a conditional discharge with six months' probation for the uttering a threat conviction. As the original criminal conviction, which was the basis for Count 5, was set aside and a new conviction was entered, in January 2012 the Service charged the Appellant with a further P.S.A. charge of Discreditable Conduct for being convicted of a criminal charge of uttering a threat causing bodily harm (Count 6).

13. In June 2012, Hearing Officer Finn found the Appellant not guilty on Count 3, but guilty on Count 4. No penalty was imposed at that time. The Appellant then brought a Motion to set aside his July 20, 2010 guilty plea to Count 5 on the basis that the Court of Appeal decision setting aside his convictions "nullified" the guilty plea.

14. On September 25, 2012, Hearing Officer Finn heard and allowed the Motion. However, he then recused himself due to allegations of bias.

15. The Service brought an application to the Divisional Court for judicial review of Hearing Officer Finn's decision to set aside the guilty plea. On April 9, 2014, Justice Nordheimer set aside Hearing Officer Finn's ruling and ordered that the matter be reheard by a new Hearing Officer. The Motion was then reargued on September 30, 2014, before Hearing Officer Killeen, who dismissed the Motion. In doing so, he found that the decision of the Court of Appeal setting aside the convictions and ordering a new trial, did not affect the Appellant's July 20, 2010 guilty plea on Count 5.

16. Hearing Officer Elbers then began the penalty phase of the Hearing on May 26, 2015 for Counts 4 and 5. During that Hearing, it was discovered that the Appellant had not formerly pleaded guilty to Count 6 as he intended to do, but he did so on July 23, 2015.

17. Hearing Officer Elbers issued his penalty decision for Counts 4, 5, and 6, and dismissed the Appellant from the Service on September 23, 2015.

The Issues

18. The broad issues to be decided on the Appeal are as follows: (a) Did Hearing Officer Killeen err in law by holding that the Court of Appeal decision setting aside the Appellant's convictions did not affect the Appellant's guilty plea and conviction on Count 5? (b) Was the penalty of dismissal imposed by Hearing Officer Elbers reasonable?

Reasons and Analysis

19. The Appellant submitted that the standard of review of Hearing Officer Killeen's decision on a question of general law is correctness. The Respondent submitted that, while the correctness standard of review may apply to a consideration of general questions of law, the standard of review in this matter is reasonableness, as Hearing Officer Killeen was interpreting and administering his home statute, the P.S.A.

20. The Respondent relies on the decision in Gough v. Peel Regional Police Service, [2009] CanLII 12112 (ON SCDC) in support of the submission on the standard of review. There, the Court confirmed that the Commission's analysis of a section of the P.S.A., being its own statute, was subject to review on a standard of reasonableness. However, it went on to indicate that in the matter before it, the Commission was analysing the "doctrine of waiver and atonement by guilty plea" which were general principles of law resulting in a review on the standard of correctness, where the Court's expertise "trumps" that of the Commission. However, the Commission's role on review has been addressed in detail by the Divisional Court in Ontario Provincial Police v. Purbrick, 2013 ONSC 2276. There the court clearly stated that while the Commission may apply a reasonableness standard to questions of fact made by a Hearing Officer, on questions of law the standard is correctness.

21. In this case, there appears to be some confusion as to what Hearing Officer Killeen was asked to, and actually did, decide. The Appellant states that at his motion he sought to nullify the guilty plea on Count 5, which was predicated on there being a criminal conviction, but that the Hearing Officer misunderstood the motion and thought the Appellant was seeking that the guilty plea be withdrawn. The Hearing Officer wrote: "I cannot agree that the charge under Count 5 of the amended Notice should be permitted to be withdrawn or that it should be quashed as invalid as an abuse of process." It may be that Hearing Officer Killeen intended to write the "plea" rather than the "charge."

22. The crux of the Appellant's argument challenging Hearing Officer Killeen's decision is that an officer cannot be convicted of Discreditable Conduct under section 2(1)(a)(ix) without a criminal finding of guilt (i.e., a conviction by the criminal courts).

23. The decision of Hearing Officer Killeen may be lengthy but his analysis is brief, consisting essentially of the following four paragraphs:

[88] First, I conclude that the plea of guilty to this Count was obviously entered by Const. Turpin as part and parcel of a carefully considered strategic or tactical decision by the officer and his experienced counsel. No argument was made here about the ineffectiveness or negligence of counsel.

[89] This plea was made with "eyes wide open", as it were, and something of value was received in exchange by the Officer by way of the dismissal of Counts 1-2.

[90] Second, I am far from convinced that it can be reasonably argued on the facts of this case that the outcome in the Court of Appeal of the two criminal charges somehow eviscerates the basis for the Count 5 charge. The gist of the Count 5 charge is discreditable conduct and, as Watson, Gillen and other cases have held consistently, the disciplinary proceedings stand as separate administrative-law or labour-law proceedings which, while having a common factual matrix, nevertheless have a life of their own.

[91] Third, I also note that the Court of Appeal did not acquit Const. Turpin on the criminal charges. Rather, the Court directed a new trial based on fair-trial considerations and the new-trial process led to a withdrawal of one charge and a conviction on the other.

24. The Appellant relies on a number of decisions in support of his submission that the conviction of an officer for Discreditable Conduct under section 2(1)(a)(ix) cannot stand without a criminal finding of guilt (i.e., a conviction). In Blackburn and Niagara Regional Police Service [17 September 2003], OCCPS 03-22, the officer was found guilty of Discreditable Conduct after he was found guilty of a criminal code offence, and while his Appeal of the criminal conviction was pending. The Commission held as follows:

The outcome of his criminal appeal will effectively determine the net result of his disciplinary proceedings. If he is unsuccessful on his criminal appeal then the disciplinary conviction stands. If he is successful on his criminal appeal, then the disciplinary conviction is over.

25. Similar comments were made in the Commission's decision in Hewitson and Meaford Police Service Board [30 November 1994], OCCPA 94-06. Hewitson was convicted of four charges under the Criminal Code and then was charged with four counts of Discreditable Conduct under the P.S.A., based on these convictions. Hewitson was found guilty of the four counts of Discreditable Conduct, but then his Appeal of the criminal convictions was allowed with two of the charges quashed and a new trial ordered on the other two. The prosecution decided not to proceed with a new trial and the appeal on the P.S.A. convictions then came before the Commission. The parties resolved that matter by requesting that Hewitson be reinstated to the Service. The Commission agreed to this request. The Commission's decision does not indicate, however, that the P.S.A. Discreditable Conduct convictions were set aside, only that Hewitson was to be reinstated. The Appellant relies on the following comments from this decision:

Obviously, there will be cases where a criminal appeal will be successful. If any prior disciplinary action is based solely upon convictions which are overturned, then that disciplinary decision cannot be supported and must fall.

26. The Respondent's submission is that section 2(1)(a)(ix) does not require a criminal conviction, only that the officer is guilty of a criminal offence. According to the Respondent, when the Appellant pleaded guilty to Count 5, this was an admission by him of "all the legal ingredients necessary to constitute the crime charged and dispenses with the necessity of proof of the ingredients": R. v. Lucas, [1983] OJ No. 158. We are not prepared to accept this submission. We have not been provided with any decision that adopts this interpretation of section 2(1)(a)(ix). As far as we are able to determine, that section has only been used when there has been an actual conviction.

27. Given the particular facts of this case, however, it is not necessary for us to comment on whether a guilty plea to a charge of discreditable conduct under s. 2(a)(ix) requires in all cases that a finding of guilt has been made by court of competent jurisdiction. At the time of the plea by the Appellant, he had been convicted of a criminal offence. His plea admitted the underlying facts of the offence and was properly before the Hearing Officer. In our view, the subsequent overturning of that conviction does not render the original plea a nullity. The plea was valid at the time it was made and it should stand. We emphasize that this analysis deals only with the situation where a, presumably informed, plea of guilty made rather than a finding of guilt which was subsequently overturned and is not inconsistent with the decisions in Hewitson or Blackburn.

28. It is also important to highlight that there is nothing in the record to suggest that the plea was not a deliberate and strategic choice on the part of the Appellant. As described above, it was part of a negotiated deal to have other charges withdrawn, by a party who was represented by counsel and was well aware of the procedural options available to him in this matter and the parallel criminal matter. None of the cases provided by the parties are directly on point as they do not deal with the situation where an officer pleads guilty to a charge of Discreditable Conduct as part of a negotiated deal to have other charges withdrawn. The Respondent submitted that the Appellant ought not to be allowed to now "resile" from his agreement. Estoppel was not argued before us, however, as indicated above, the Appellant should not to be allowed to withdraw or have nullified his guilty plea to Count 5. The criminal justice system relies on plea bargains. The civil justice system would collapse without the binding settlement of actions. Trade-offs are routinely made in labour relations and employment matters.

29. Presumably, the Appellant was content that a Hearing Officer decided the appropriate penalty on the basis, at least partially, of his guilty plea to Count 5, rather than having to deal with the possibility of findings of guilt on Counts 1 and 2. The parties advanced what may be called policy arguments for and against nullifying the plea. In our view, the policy arguments do not favour allowing the Appellant to retract from the agreement reached in this matter.

30. However, even if we are incorrect and Count 5 should be dismissed, we find that the penalty of dismissal imposed by Hearing Officer Elbers is reasonable and ought to be confirmed. Hearing Officer Elbers wrote the following about the reasonableness of the penalty at page 34 of his decision:

I also believe that the most appropriate way to assess a penalty in this case is to render the penalty as one. In saying this, it must also be known, that I believe each of the counts that Constable Turpin faces and has been found guilty in itself could stand alone and be the same as the three charges being placed together for an appropriate disposition. [Emphasis Added]

31. The Appellant submitted that Hearing Officer Elbers made a number of errors which led to him imposing a "wholly unreasonable penalty" and asks that we overturn the decision, impose a demotion, or order a new Hearing. These errors may be summarized as follows:

• He erred in law by relying on the overturned factual findings of Justice Lack as her credibility and factual findings were tainted;
• He allowed Inspector Dmytruk to testify on Justice Lack's factual findings which informed his opinion that the Appellant's usefulness to the Service had expired;
• He erroneously found that the Appellant lied in the P.S.A. proceeding;
• He erroneously concluded that the Appellant's use of force was wrong and seriously so.

32. The Appellant further submitted in support of his argument that the penalty of dismissal was unreasonable because:

Hearing Officer Elbers failed to properly consider relevant mitigating factors and evidence including:

• The Appellant's work-related commendations and awards;
• The limited nature of the physical altercations with Egan and Schwalm;
• The Appellant was not convicted of the related criminal charges;
• The Appellant pleaded guilty to the Egan charges;
• Hearing Officer Finn's findings about the Appellant's credibility and motives in his analysis.

33. In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) [2011] 3 S.C.R. 768 ("Newfoundland"), the Supreme Court of Canada wrote of the restraint that must be shown by a court on judicial review in reviewing the reasons of administrative tribunals where a party has alleged inadequacy of the reasons. At paragraph 16, the Court wrote the following:

Reasons may not include all arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion...In other words if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of reasonable outcomes, the Dunsmuir criteria are met.

34. The Dunsmuir "criteria" refers to the existence of justification, transparency and intelligibility within the decision-making process that makes a decision reasonable, i.e. whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. The Court in Newfoundland accepted "perfection is not the standard" for reasons and that a reviewing court should ask whether "when read in light of the evidence before it and the nature of its statutory tasks, the Tribunal's reasons adequately explain the basis of its decision."

35. The Court in the Newfoundland decision also adopted the following statement:

When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties' submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive.

36. The Respondent acknowledged that there were several errors in the decision of Hearing Officer Elbers including:

• He mistakenly attributed several passages from the Judgment of Justice Lack to Hearing Officer Finn; and
• He mistakenly described the incident involving Schwalm in one paragraph of his decision when it in fact involved Egan.

37. While it cannot be said that the reasons of the Hearing Officer were perfect, we have considered the reasons as a whole and the evidence before him and conclude that the penalty of dismissal was one available for him to impose and was reasonable.

38. Hearing Officer Elbers took into account the Appellant's employment/disciplinary record in considering the penalty. This history included:

• Two neglect of duty convictions in 1997 for failure to attend Court;
• Two convictions in 1998 for unlawful or unnecessary exercise of authority and failing to report a matter that was his duty to report arising from a warrantless entry to a private residence;
• A 2005 conviction for neglect of duty for failing to process a Provincial Offences Notice.

39. Hearing Officer Elbers also took into account the Appellant's performance service record including his commendations, letters of recognition and references both from members of the public and superior officers, two of whom indicated that they did not consider the Appellant to be a liability to the Service.

40. Hearing Officer Elbers also reviewed in some detail the findings of Hearing Officer Finn, the incidents giving rise to the convictions and thirteen different factors to be considered in determining an appropriate penalty. These included matters ranging from the public interest, to the need for deterrence, the effect of the penalty on the Appellant's family, the ability to rehabilitate the Appellant, the damage to the reputation of the Service and the need for consistency in deciding the penalty. The Commission does not re-weigh how the Hearing Officer balanced these considerations.

41. In reviewing the facts behind the conviction on Count 4, Hearing Officer Elbers quoted the following passage from the decision of Hearing Officer Finn:

I conclude from these images that they depict exactly what they appear to. Mr. Schwalm was handcuffed behind his back to his pants around his ankles and escorted by Turpin. Turpin has full control of him to the very effect of application of number 2 escort hold and upon entering the cell. Turpin immediately executed a violent takedown manoeuvre that was not designed to allow any possibility for the intoxicated Schwalm who was handcuffed and further restricted in his movements by having his pants around his ankles to break his own fall or otherwise save himself from injury.

I can see absolutely no indication of Turpin being off balance or without control. Mr. Schwalm until the point at which throw was complete and his left hand has released Mr. Schwalm's left arm. Given the evidence of Constable Turpin it is clear that he did exactly as he intended and took Schwalm to the ground... He [Turpin] knew or should have known that the execution of such a manoeuvre in a confined space surrounded with such hard surfaces and upon a person who was unable to break his own fall might reasonably be expected to result in serious injury.

42. We have read all of the decisions on penalty presented by the parties. The Appellant submitted that a penalty less than dismissal is justified in this case, based on the nature of the conduct and mitigating factors. The Appellant argued that a period of demotion would adequately serve the penalty disposition principles the Commission must consider. In support of his position the Appellant referred to decisions that show the Commission has accepted penalties less than dismissal where the conduct was comparable to, or more serious than, the Appellant's conduct.¹

43. The cases cited by the Appellant confirm that the Commission has accepted lesser penalties in cases where the conduct was similar to, or even more serious than, that of the Appellant. However, the Respondent submits that in a number of cases the Commission found that the type of misconduct that the Appellant was found to have committed – violence and threats against two members of the public on separate occasions – warranted dismissal.² The Respondent further submitted that it is not open to the Commission to reweigh factors that were considered by Hearing Officer Elbers in his Penalty Decision, and that the Penalty Decision is entitled to deference on appeal.

44. It was the function of Hearing Officer Elbers to weigh the evidence, as found by Hearing Officer Finn, consider the evidence before him that went to the penalty, and the factors to be taken into account in deciding that penalty. While we cannot say that we would necessarily have come to the same disposition, neither can we say that the penalty of dismissal was unreasonable in all of the circumstances. Dismissal is within the range of penalties in similar – and even less serious – cases.

45. Even leaving aside the guilty plea to Count 5, the Appellant had a criminal conviction for uttering a threat, resulting in a conviction on Count 6, and a conviction for use of unnecessary force on Schwalm, Count 4. There was no justification for his actions in dealing with Schwalm in the manner that he did. Whatever earlier provocation there may have been during the initial arrest had subsided by the time of this incident.

Disposition

46. Pursuant to section 87(8)(a) of the P.S.A., the Commission confirms:

a) the decision of Hearing Officer Killeen, denying the motion to nullify the guilty plea and b) the decision of Hearing Officer Elbers, dismissing the Appellant from the Service.

DATED AT TORONTO THIS 15th DAY OF MARCH, 2016.

D. Stephen Jovanovic, Associate Chair Marie Fortier, Member Katie Osborne, Member

Footnotes

1. 1See Groot and the Peel Regional Police Service, OCPC 02-04; Turgeon and Ontario Provincial Police (15 July 1999), OCCPS 99-06; Penner v. Constable Nathan Parker, Constable Paul Koscinski, and Niagara Regional Police Service (6 June 2005), OCCPS 05-05; Batista and Ottawa Police Service (22 February 2007), OCCPS 07-06; and Wiles and Durham Regional Police Service (7 December 2012).
2. 2See Constable Wiles and the Durham Regional Police Service, OCPC #14-15; Constable Venables and York Regional Police Service, OCPC #08-08; Constable Groot and the Peel Regional Police Service, OCPC #02-04; and Constable Vos and the Peel Regional Police Service, OCPC #93-09.