R v Power, 2014 SKPC 17 (CanLII)
R v Power, 2014 SKPC 17 (CanLII)
|
IN THE PROVINCIAL COURT OF SASKATCHEWAN
Citation: 2014 SKPC 017
Date: January 24, 2014
Information: 35883277
Location: Regina
_____________________________________________________________________________
Between:
Her Majesty the Queen
- and -
Appearing:
Mr. William Burge For the Crown
Mr. Aaron Fox, Q.C. For the Accused
Background
[1] The accused, Robert Kenneth Power, is a Regina City Police officer. He is charged that on May 7, 2012, he assaulted Edward Stonechild and caused bodily harm to him contrary to s. 267(b) of the Criminal Code. The evidence clearly establishes that the accused kicked Mr. Stonechild in the abdomen or chest area, causing him to fall backwards and hit his head on the cement. Clearly, the accused assaulted the complainant. The Defence argues that the accused’s actions were taken in self-defence and justified under ss. 25 and 34 of the Criminal Code. The ultimate issue to be determined in this matter is whether the force used by the accused was reasonable in all of the circumstances. If the force used by the accused was reasonable, he must be found not guilty. If the force used was excessive, then the Defence of self-defence is not available to the accused, and he must held criminally responsible under s. 26 of the Criminal Code.
The Evidence
[2] With the consent of Defence counsel, the Crown entered a Police Occurrence Report as Exhibit P-1 and a DVD as Exhibit P-2. In the City of Regina, in the downtown area, is what is known as the Brief Detox Unit (BDU). It is a safe shelter facility for intoxicated persons. The facility is equipped with a number of video cameras attached to a DVD recorder. It should perhaps be noted that these cameras do not operate at what I would describe as “full movie speed”. They take perhaps a couple of snapshots per second. The result is that when people are moving quickly, their actions appear somewhat jerky. However, the videos are otherwise quite clear and record what happened on May 7, 2012.
[3] These videos show an individual, the complainant Edward Stonechild, walking around the BDU. (Throughout this case, counsel referred to and addressed Mr. Stonechild as Eddy, so I shall do the same.) From the video, it would appear that Eddy was obviously intoxicated. His walking is slow and deliberate and on occasion he can be seen to obviously stagger or stumble to one side or the other.
[4] These videos also record that Eddy had more than one encounter with the accused, Constable Power. The earlier videos are quite unremarkable in that it would appear that Eddy and Constable Power have a brief conversation and nothing more.
[5] In the final video however, we see Eddy walk past the front doors and the buzzer system at the BDU. A few feet past those doors was a concrete wall or barrier. I would estimate its height to be approximately 3 feet. Eddy leans up against this barrier for a period of time. Then a Regina City Police vehicle pulls up and stops in front of the BDU. A few seconds later, Constable Power can be seen to exit from the driver’s door of the police vehicle. It appears that he was putting on some gloves. At this time, Eddy took two or three steps toward the police officer. His hands were at his side as he did so. Constable Power took one step forward and kicked Eddy in the abdomen area. The force of the kick immediately bounced Eddy backward, and he fell backward hitting his head on the cement. Constable Power then approached Eddy lying on the cement, rolled him over and handcuffed him. In addition, one can see Constable Power remove something in a paper bag from Eddy’s coat and throw it on the cement. A short time later, two individuals separately come out of the BDU. One of those was identified as Mr. Jon Heathcote, an Emergency Measures Technician, employed at the BDU. Mr. Heathcote and Constable Power provided care and assistance to Eddy. Later, an ambulance and other police officers arrived. Eddy was taken to hospital. The Court was advised that at approximately 9:00 p.m. on the evening of May 7, 2012, he was released and returned to the BDU.
[6] The Police Occurrence Report, entered as Exhibit P-1, clearly establishes that Constable Power reported that he used his left hand to push Eddy in the chest, and that he fell backward hitting his head.
[7] The Crown called the complainant, Mr. Edward Stonechild, to give evidence. He testified that he is 48 years of age, born in 1968. He said he lives mostly at the detox centre “by the bus stop and cop shop”. He said he has lived there for a long time, since his house burned down, may be 7 years ago. He couldn’t recall when he last worked.
[8] He said he has only one eye. Further, that he lost an eye in an accident about 8 years ago. Often, his one eye becomes irritated.
[9] Eddy had absolutely no recollection of the event. He could not recall the event or getting a subpoena. Even when Crown counsel showed him portions of the video, he could not identify the parties in the video and had no recollection of the event. He did not remember going to the hospital.
[10] Under cross-examination, he said that he sleeps at the detox quite a bit. He said he goes there sometimes on his own and sometimes is taken there by the police. He said that he has Hep C and thinks that he has HIV.
[11] Eddy did not testify as to his height, weight or physical condition. However, I estimated and noted that his height was at the most, 5’6”. I estimated his weight to be a maximum of 140 pounds, and probably not more than 120 pounds. He appeared to be very frail and slow moving. He shuffled up to the witness stand and away from it at the conclusion of his testimony.
[12] The Crown also called Mr. Jon Heathcote. Mr. Heathcote testified that he is an EMT by trade, and was in that position since 2001. Approximately three and one-half years ago, when the BDU opened, he became employed with the BDU and has been employed there since.
[13] He stated that the BDU is a safe shelter for intoxicated persons. Individuals can come to the BDU on their own, or can be referred by other health authorities or police. When an individual comes to the BDU, Mr. Heathcote will briefly examine and assess the individual, to ensure that they are intoxicated, and not suffering from some other kind of injury.
[14] Mr. Heathcote said that he had never seen any video before the trial. At trial, he was shown only a portion of the video where Mr. Stonechild was laying on the cement in front of the BDU. Mr. Heathcote recalled the event. He testified that his partner, a fellow employee at the BDU, advised him that “Eddy” was laying on the ground in front of the BDU. The partner asked Mr. Heathcote to come out and have a look at Eddy.
[15] Mr. Heathcote testified that he found Eddy laying on the ground. There was slow bleeding from the back of his head and some pooling of blood on the concrete. Constable Power called for an ambulance. Constable Power and Mr. Heathcote provided some first aid to Eddy for about 10 to 15 minutes until the ambulance arrived. Mr. Heathcote said this mostly comprised simply of keeping Eddy still, in case there was a neck injury.
[16] Mr. Heathcote said that he has known Eddy Stonechild since 2001 when Mr. Heathcote became an EMT. On the ambulance, he would regularly see Eddy. He said he would see him every month or two. He also saw Eddy very frequently at detox. He testified that he would have dealt with Eddy Stonechild more than one hundred times over the years.
[17] Mr. Heathcote said that Eddy has a very small stature, with “no muscle”. He saw Eddy at court on the date of trial, and said Eddy looks the same now as he did in 2012.
[18] Mr. Heathcote also said that Eddy is very simple minded, and seems like a child. Mr. Heathcote believes that Eddy suffers from some mental impairment.
[19] Under cross-examination, Mr. Heathcote was asked if his partner indicated that Constable Power had asked that he come out and look at Eddy. Mr. Heathcote agreed that was likely the case. He also stated that he believed that Constable Power called the ambulance. He said that Constable Power had a first aid kit in the police vehicle that contained bandages, and that Constable Power assisted Mr. Heathcote in dealing with Eddy until the ambulance arrived.
[20] Mr. Heathcote also testified that Constable Power had told him that Eddy came at him (at Constable Power) and that he then kicked Eddy.
[21] Lastly, Mr. Heathcote said that Ed’s disposition can frequently and quickly change. He can go from being pleasant to abusive and swearing. He stated that you are just not sure what you will get from one day to the next.
[22] Constable Power testified that he is 41 years of age, is married and has one child. He was born and raised in Moose Jaw, where he received a Grade 12 education. In 2005, he enrolled with the RCMP and completed his training there in February, 2006, following which he spent 2 years with the force. In 2007 he joined the Regina Police Service and completed in-service training there. He received use of force training with both the RCMP and the Regina Police Service. He briefly discussed the use of force model, and indicated that an officer must assess the threat level. The appropriate level of force will depend upon that assessment. He also testified that spitting can be a threat, and that fear of HIV and Hep C is a relevant factor in assessing threat.
[23] On May 7, 2012, he was on the day shift and in uniform and a marked police vehicle. He was alone in his vehicle during the day. He testified that on May 7, 2012 he had been working in the downtown area for approximately 2 ½ years. Eddy lived and moved in the downtown area. Constable Power said that he dealt with Eddy almost daily and knew him very well. He said that Eddy was generally cooperative, but could sometimes be abusive. Sometimes, when not cooperative, he could be passively resistant or even physically resistant. Eddy was flagged on the Regina Police Service computer system as being HIV positive and positive for Hep C.
[24] He testified that on many occasions he had picked up Eddy and taken him to the BDU. On other occasions he had arrested him for public intoxication. He testified that in his experience, Eddy will drink anything available, for example hand sanitzer, hair spray or rubbing alcohol.
[25] Using Police Occurrence Reports to refresh his memory, he testified about a number of incidents involving Eddy Stonechild. On April 3, 2011, Constable Power attended the Regina Inn parking garage. Constable Power and a security officer located Eddy in a stairwell. When they asked him to leave, he became belligerent and referred to the security guard with a racial slur. Constable Power testified that on this occasion he had to use a joint lock to subdue Eddy and to place him under arrest.
[26] On May 7, 2012, he first encountered Eddy on Osler Street, near the BDU. He testified that he spoke to Eddy, told him the BDU was right there and suggested that Eddy head in there for the night. Eddy turned around, walked the other way and down the alley. Constable Power turned into the alley, and again confronted Eddy. He said that he told Eddy that if he wouldn’t go into the BDU then Constable Power would have to arrest him. Eddy then walked to the front of the building, passed the front doors and a buzzer to the concrete barrier. Constable Power then drove up there and stopped.
[27] Constable Power then told Eddy that if he wouldn’t go in then he would have to go to jail. Constable Power advised him he was under arrest. Constable Power said that on two occasions, Eddy said to him: “Fuck you. Do you want to fight me?” At this time Constable Power exited the police vehicle and was pulling on rubber gloves for protection. As he was still pulling on his rubber gloves, Eddy came at him fairly quickly and was yelling. At this time the officer said he kicked Eddy in the abdomen area. It was a “forward press kick”. He described it as a pushing kick. He said he used this kick to gain time to further assess the situation and gain control. Ed fell backward and hit his head. Constable Power testified that he immediately went to him, handcuffed him and searched him. He noticed a pool of blood on the cement. He called EMS on his lapel radio and radioed the Sergeant for a Use of Force Officer.
[28] Constable Power testified that he knew Mr. Heathcote was an EMT. He asked an individual to request that Mr. Heathcote come out to assist with Eddy’s care. He got a first aid kit from the police vehicle and they used bandages to stop or slow the bleeding until the ambulance arrived.
[29] He testified that he removed a bag with hair spray from Eddy’s jacket. He believes that Eddy did not want to go into the BDU because they would take the hair spray from him.
[30] A few moments later Sergeant Huber attended. Constable Power testified that he told Sergeant Huber that he pushed Eddy with his hand and that Ed fell backward. He said this statement was not true. At first Constable Power said he didn’t know why he said that. He then said that he panicked when he saw blood. He said he thought that Eddy had a really serious injury, and he did not intend to inflict injury. Constable Power stated that he kicked Eddy to defend himself because Eddy was coming at him. He said he thought Eddy would hit him. He testified that as Eddy came at him, he had his fists raised.
[31] Defence counsel then reviewed some of the videos with the accused. As Eddy walks through the back alley, you can see that he clearly stumbles from side to side.
[32] In front of the building, it is clear that Eddy moves toward the police officer at which time the officer kicks him and he falls backwards. You can also see the officer removed something from Eddy’s jacket and threw it on the ground.
[33] In cross-examination, Crown counsel reviewed the video showing when Sergeant Huber arrived. Constable Power agreed that he was giving Sergeant Huber a demonstration of how he had pushed Eddy with his hand and Eddy then fell backwards. Constable Power admitted that he repeated this same scenario when he prepared the Occurrence Report that is Exhibit P-2. Further, that he made these same statements to the Use of Force Officer. When confronted with the video, Constable Power admitted that the video did not show that Eddy had his hands up. Rather, Eddy’s hands appear to be at his sides. Constable Power did say that he believed that Eddy’s hands were up. Later, he testified that he maintained his story that he had pushed Eddy with his hands, until he was confronted with the video obtained from the BDU.
[34] Constable Power testified that he was taught to use a pushing kick when a person becomes aggressive or combative, and that this was one of the tools available to him. He said he couldn’t use his hands because he was trying to get his gloves on at the time. He disagreed with Crown counsel when it was suggested that he could have simply stepped to the side and disagreed that Eddy could not have reached him if trying to strike him.
[35] He did agree however that Eddy is not a fit individual and is quite slow moving.
[36] Constable Power testified that he is 6’1” tall and weighs 215 pounds. He testified that he may have been a little bit heavier at the time of this incident. He said that he tries to stay fit and frequently uses the gym. He cycled and lifted weights and played sports. He believed he was fairly well coordinated.
[37] When confronted, he denied that he was embarrassed by what he did to Mr. Stonechild. He denied that he made the statement regarding pushing Eddy with his hand because he knew how much force was appropriate and knew his force was inappropriate. He denied that he knew that kicking was more force than was justified, and said he didn’t know why he didn’t tell the truth. He said he knew that Eddy was injured but did not think he had killed him.
[38] Under re-examination, Constable Power said his perception was that Ed was raising his fists to hit him. He said that he was equipped with pepper spray, a baton and a gun. He said he didn’t use any of these because he didn’t think he had time and only used the kick. He said that after being confronted with the video, he gave a full, complete and accurate statement to the Use of Force Officer.
[39] The last defence witness to testify was Mr. Joel Johnston. Mr. Johnston testified that he was involved in policing with the Vancouver Police Department for 28 years until his recent retirement. He started working on the lower east side in Vancouver. He worked his way through the ranks to become a sergeant. He was involved in police training programmes regarding self-defence and the use of force. He was involved in development of the use of force model that is presently used by municipal police forces and the RCMP throughout the country. On various occasions he has been qualified as an expert witness to provide evidence regarding the use of force by police officers.
[40] In this case, he examined the various reports and videos. He testified that in his view Constable Power’s kick was a push kick where the bottom of the boot struck Mr. Stonechild in the abdomen. It was not a snap kick where the toe of the boot would strike Mr. Stonechild in the groin or other area. In his view, the push kick was a “well executed push kick”. It was designed to and it did repel aggression. He went on to testify that in his view the use of force by Constable Power was appropriate within the use of force model and was a reasonable response by Constable Power in this situation. He testified that Constable Power may have underestimated Eddy Stonechild. But when Eddy Stonechild surprised Constable Power, the constable reacted spontaneously and in self-defence.
The Argument
[41] Counsel agreed on several key points. They agreed that the Crown has established all of the elements of the assault, and that if the accused’s actions are not justified under the self-defence provisions, then the accused must be convicted. Further, that the old self-defence provisions, as contained in old s. 34 of the Criminal Code were applicable to this case. Further, that the accused need not prove that he acted in self-defence. Rather, the onus remains on the Crown throughout, and if the Crown has not proved its case beyond a reasonable doubt, then the accused must be acquitted. They also agreed that under s. 34 and the existing case law, the force used by the accused must be reasonable and proportionate. It must not be any more force than is reasonable in all of the circumstances. They also agreed that in examining whether reasonable force was used, the Court must assess both the subjective and objective components. That is, the accused must subjectively believe he is being assaulted, and that use of force is necessary to repel or protect himself from that assault. Also, the level of force used must be objectively reasonable in all of the circumstances.
[42] It is on this last mentioned point, whether the amount of force used was objectively reasonable, that counsel went in separate directions.
[43] Defence counsel, Mr. Fox, argued that Eddy Stonechild charged at the accused, with his right arm cocked, his fist clenched and his mouth opened. He argued that Constable Power responded in accordance with his training. He used one push kick to repel the force. The accused could not weigh and measure with precision the level of force. Further, the injuries sustained by the use of force and the fall did not make the level of force unreasonable. Lastly, he argued that even if I did not accept that the level of force was reasonable, but had a reasonable doubt, that doubt must be exercised in favour of the accused.
[44] For the Crown, Mr. Burge pointed to the very large number of contacts that the accused had with Eddy Stonechild. He pointed out that Constable Power said that he dealt with Eddy on almost every shift. He said that Constable Power knew Eddy was frail, shuffling as he walked, had very limited physical ability and a diminished mental capacity. He said the video showed Eddy’s arms were by his side, his arm was not cocked, he didn’t have a clenched fist, and didn’t even come within striking distance of the accused before he was kicked. Mr. Burge said Mr. Stonechild was not in a position to deliver a blow, and there was nothing imminent about a blow from him. As a result, the force used by Constable Power was clearly more than was reasonable and appropriate.
[45] Mr. Burge also argued that the constable’s statements that he had pushed Eddy Stonechild with his hand amounted to a virtual admission that the constable had applied unreasonable force. Mr. Burge argued that the constable quickly reasoned that a kick was an unreasonable force but that a push with his hands was reasonable and appropriate, and that’s why he made those statements.
[46] Mr. Fox, countered that the accused’s statements about pushing Eddy Stonechild were an understandable and panicky reaction by the accused, and did not represent an admission of unreasonable use of force.
The Use That May Be Made of the Evidence of Joel Johnston
[47] I begin by addressing the question of the use that may be made of the evidence of Joel Johnston, and what limitations should be placed upon that evidence.
[48] As mentioned above, Mr. Johnston was qualified to give expert evidence. He has spent his career in policing, and has extensive experience in the training of police officers regarding the use of force in self-defence and in the development of the use of force model used in the training of officers. He testified that in developing the use of force model, the relevant authorities had legal advice and developed a model consistent with the criminal law. He further testified that the push kick utilised by Constable Power was a well executed push kick and in accordance with police training.
[49] I have no difficulty in accepting all of Mr. Johnston’s evidence on these points. Clearly all of these points came as a result of Mr. Johnston’s experience and expertise.
[50] However, in my view, Mr. Johnston’s evidence went further than this. Mr. Johnston said that the accused reacted impulsively and instinctively to aggressive and threatening action from Eddy Stonechild, and utilised an appropriate degree of force.
[51] I have no doubt that an attempt was made to develop a use of force model that was consistent with the criminal law. However, this does not mean and cannot mean that force used in accordance with police training is ipso facto reasonable use of force under the criminal law. The issues of whether force is in accordance with police training or is consistent with the criminal law are quite separate and distinct. The issue of whether force is in accordance with police training and the use of force model is to be determined by police authorities in the context of the employment relationship. The issue of whether force is reasonable in all of the circumstances is determined by the Court in the individual case. As a result, I disregard Mr. Johnston’s statements that the accused used reasonable force in this situation.
Whether the Old or New Self-Defence Provisions Apply
[52] There are two competing lines of authority on this issue. In cases such as R. v. Pandurevic, 2013 ONSC 2978 and R. v. Parker, 2013 ONCJ 195, the Court concluded that the new legislation should apply retroactively or retrospectively. In other cases, such as R. v. Carriere, 2013 ABQB 645, the Court determined that the new legislation should apply prospectively. I am persuaded by the detailed analysis and judgment of Mr. Justice Wakeling in the Carriere decision. He carefully analysed and examined a number of hypothetical situations and concluded those situations would be differently decided under the two sets of legislation. On this basis, he concluded that the new legislation brought about substantive changes with respect to the law surrounding self-defence. He examined the law and determined that there is a very heavy presumption against retrospective application of legislation, when substantive rights are affected. He determined that there must be a very clearly stated intention of Parliament that the legislation be applied retrospectively, in order to overcome this heavy presumption. He could not find that clearly stated intention in this legislation.
[53] In my view, Mr. Justice Wakeling’s analysis is persuasive. The new self-defence provisions must be applied prospectively. I must determine this case based upon s. 34 as it existed on the date of the offence.
The Law of Self-Defence
[54] Section 34(1) of the Criminal Code read as follows on the date of the incident:
34(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
[55] In the case of R. v. Walsh (2013) N.J. No. 349, His Honour Judge Gorman, at paras. 45 to 48 set out the following neat and instructive summation of the law in this area:
45 It had been held in relation to the former self-defence provisions in the Criminal Code that when the defence of self-defence is raised, “the burden of proof in relation to this defence is on the Crown, who must prove beyond a reasonable doubt that the defence does not apply” (see R. v. Cinous (2002), 2002 SCC 29 (CanLII), 162 C.C.C. (3d) 129 (S.C.C.)). In R. v. Ryan, 2011 NLCA 9, it was noted, in the context of the former section 34(2) of the Criminal Code, that for a self-defence plea to be successful, the trier of fact must be left with a reasonable doubt as to the existence of all the elements of the defence . . . If the Crown proves beyond a reasonable doubt that any one of the above three elements is lacking, self-defence is not available to an accused . . .” Similarly, in R. v. English, [2012] N.J. No. 335 (C.A.), the Court of Appeal, at paragraph 9, indicated that if “the accused establishes an air of reality with respect to the components of the defence, the Crown must prove beyond a reasonable doubt that the defence does not apply (paragraph 39). An air of reality is established if ‘there is evidence on the record upon which a properly instructed jury acting reasonably could acquit’ (paragraph 49). Whether there is an air of reality ‘is a question of law, subject to appellate review’ because it amounts to ‘a legal conclusion about the presence or absence of an evidential foundation’ for the defence (paragraph 55).”
46 In R. v. Bailey (2010), 2010 BCCA 167 (CanLII), 253 C.C.C. (3d) 509, the British Columbia Court of Appeal described the constituent elements of self-defence, as defined by the former section 34(1) of the Criminal Code, in the following manner (at paragraph 26):
1. the accused was unlawfully assaulted by the victim;
2. the accused did not provoke the assault;
3. the force used by the accused was not intended to cause death or grievous bodily harm; and
4. the force used by the accused was no more than necessary to enable him to defend himself.
47 What is reasonable force: In R. v. McKay (2009), 2009 MBCA 53 (CanLII), 246 C.C.C. (3d) 24 (Man. C.A.), it was held, in the context of a consideration of the former section 41(1) of the Criminal Code, that force which is “clearly disproportionate to what was required under the circumstances” fails to satisfy the section 41(1) standard (“no more force than is necessary”). In R. v. Szczerbaniwicz, 2010 SCC 15 (CanLII), [2010] 1 S.C.R. 455, the Supreme Court of Canada, at paragraphs 20 and 21, indicated that a trial judge assessing the reasonableness or proportionality of force used pursuant to a justification must determine “whether the force used was ‘reasonable in all the circumstances’. . . The reasonableness of ‘all the circumstances’ necessarily includes the accused’s subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required.”
48 In R. v. Krasniqi, [2012] O.J. No. 4010 (C.A.), at paragraph 95, the Ontario Court of Appeal affirmed its comments in R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96, in which it indicated, in deciding whether the force used by an accused person was more than was necessary in self-defence under the former section 34(1) of the Criminal Code, that it must be kept “in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of defensive action.”
[56] The case of R. v. Szerzerbaniwicz, 2010 SCC 15 (CanLII), 2010 SCC15, was referred to by His Honour Judge Gorman. It is a case where the accused argued defence of property, as opposed to self-defence. However, the Court’s comments in that case have most frequently been held to be applicable to both the defence of property and self-defence. See for example: R. v. Walsh, supra; R. v. Crundwell, 2013 ABCA 5; R. v. John, 2011 BCSC 479. Undoubtedly, the view that the Szerzerbaniwicz case is applicable to the self-defence provisions or defence of third party provisions, as well as to defence of property, is based at least on part on para. 18 of the Szerzerbaniwicz case, where Madam Justice Abella, speaking for the majority, stated:
Section 39(1) is found in the Criminal Code together with other provisions setting out how the use of force and the defence of property and persons can be justified. While s. 39(1) itself has yet to be interpreted by this Court, there is helpful analogous jurisprudence dealing with these other provisions, most of which use similar or identical language to the phrase “no more force than is necessary” found in s. 39(1). Nothing in the language of s. 39(1) suggests that the meaning of the words “no more force than is necessary” is different from these other provisions.
[57] Madam Justice Abella then went on to quote from the Ontario Court of Appeal decision in R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.) and following that quote made the following comments:
The sections of the Code authorizing the use of force in defence of a person or property, to prevent crime, and to apprehend offenders, in general, express in greater detail the great principle of the common law that the use of force in such circumstances is subject to the restriction that the force used is necessary; that is, that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or harm it is intended to prevent.
The “proportionality” approach has more recently been characterized as an inquiry into whether the force used was “reasonable in all the circumstances”. . . The reasonableness of “all the circumstances” necessarily includes the accused’s subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required: the subjective believe must be based on reasonable grounds.
[58] In summation on this point, there are four elements of self-defence. In this case, the most important element is the fourth one. In order for that element to be met, the force used by Constable Power must have been reasonable in all of the circumstances.
Analysis and Decision
[59] As mentioned above, for the force to be reasonable, the accused, Mr. Power, must have subjectively believed he was in danger of harm and must have subjectively believed his use of force was reasonable. This subjective belief must be based upon reasonable grounds. I have serious reservations about Mr. Power’s credibility and, in particular, whether he regarded Eddy as a credible threat. However, I chose to assume this subjective belief was present, and determine this case on the basis of whether the accused’s use of force was objectively reasonable in all the circumstances.
[60] In determining whether the force was reasonable in all of the circumstances, I have considered the following factors or circumstances. Firstly, I note that while Constable Power testified he believed he was under attack, Eddy Stonechild did not strike a blow and had no actual physical contact with the accused. Mr. Burge, for the Crown, argued that Eddy did not get physically close enough to the accused to strike him. I believe Mr. Burge is correct. Constable Power is considerably larger than Eddy Stonechild. His legs are longer than Eddy Stonechild’s arms. I conclude that Constable Power kicked Eddy Stonechild and drove him backward before Eddy got close enough to the accused to actually strike a blow.
[61] Secondly, I considered whether Constable Power had alternative steps with lesser degrees of force that he could have taken. In various cases, such as Szerzerbaniwicz, supra; R. v. Willansky (2012) N.J. No. 469 (Nfld. Prov. Ct.) and R. v. Philpott (2011) N.J. No. 19 (Nfld. S.C.) all considered whether the accused had other options that involved a lesser degree of force. In my view, in this case, Constable Power did have other options. I think he might have hollered some sort of warning or command to Eddy Stonechild. He might have held up his hands and arms to block a blow, or simply have pushed Mr. Stonechild backward. He might have stepped aside. Constable Power appears to be in very good physical condition, and quite agile. I believe and conclude that he was capable of stepping out of the way and avoiding any contact.
[62] Thirdly, I have considered the fact that Constable Power is a professional police officer, with professional training, and was acting in the course of his duty. In my view, this bears upon the degree of force that is reasonable in all of the circumstances. In the Szerzerbaniwicz case, supra, and R. v. Underhill, 2013 BCSC 7, the Court took particular note of the fact that the accused and the victim of the assault were in a spousal relationship. In the Underhill case, the Court specifically commented that because of the spousal relationship, the reasonable and justifiable force to be used by the accused was relatively minimal. In a similar vein, I believe that when an individual is involved in an altercation with a police officer acting in a professional capacity, that individual and the general public should be able to expect that the police officer will look for viable options to the use of extreme force and will use no more force than is reasonably necessary.
[63] Fourthly, I have considered the relative physical capabilities and/or disabilities of the accused and Eddy Stonechild, and the fact that the accused was fully knowledgeable of Eddy Stonechild’s disabilities. These factors were specifically considered by the Court in R. v. Underhill, supra and R. v. Richter, 2012 BCSC 1995. In this case, Constable Power admitted that he had almost daily dealings with Eddy Stonechild. Further, that this had been the case for years. He estimated that he had well more than one hundred dealings with Eddy Stonechild. He knew that he was much bigger and stronger than the victim and in way better shape. He knew that he could move much more quickly and much more forcibly than the victim. He also knew from his dealings in the minutes before this altercation that Eddy Stonechild was very intoxicated, and really couldn’t put up much of a fight. In the words utilised in some of the decisions, Eddy Stonechild was “no match” for the accused.
[64] In my view, a consideration of all of these factors speaks to a conclusion that a fairly minimal level of force by Constable Power was all that was reasonable and justifiable in the circumstances. In my view, Constable Power’s force was well more than minimal, and was excessive. I do not make this determination because Eddy Stonechild suffered an injury from falling backwards, but because, in my view, kicking Mr. Stonechild in the abdomen-chest area, was unreasonable and excessive use of force.
[65] In the final analysis, I found myself setting out and answering this question. Eddy Stonechild approached, perhaps somewhat quickly, Constable Power after challenging him to a fight. His hands were at his side. He is much smaller and much more frail than Constable Power. In addition, he was very intoxicated. In all of these circumstances was Constable Power reasonably justified in kicking Eddy Stonechild in the abdomen, driving him backwards, and causing him to fall and hurt himself? I conclude that this level of force was not reasonable in all of the circumstances or justified. The force used was excessive and Constable Power was reckless regarding the consequences to Eddy Stonechild. As a result, I find Constable Power guilty of the charge of assault causing bodily harm.
[66] Prior to closing, I express my thanks to both counsel for their very thorough presentation of their respective cases.
Dated at the City of Regina, in the Province of Saskatchewan, this 24th day of January, A.D. 2013.
Comments
Post a Comment