J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 19 Date: 20110207 Between: Docket: CACR1899 Her Majesty the Queen in Right of Saskatchewan and Daniel S. Lariviere Coram: Lane, Jackson and Smith JJ.A. Counsel: Anthony Gerein for the Crown Aaron Fox, Q.C. for the Respondent Appeal: From: 2010 SKQB 360 (CanLII) Heard: February 7, 2011 Disposition: Allowed (orally) Decision: February 11, 2011 By: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Smith Jackson J.A. I. Introduction [1] Constable Daniel Lariviere was charged with assaulting Stanley Severight with weapon, to wit: pepper spray, contrary to s. 267(1)(a) of the Criminal Code. judge of the Provincial Court of Saskatchewan found him guilty of the offence and granted him conditional discharge with probation period of nine months (unreported reasons, dated October 28, 2008). On appeal to the Court of Queen’s Bench, judge of that Court quashed his conviction and ordered new trial (2010 SKQB 360 (CanLII)). [2] The Crown applied for leave to appeal pursuant to s. 839 of the Criminal Code. The Court granted leave and allowed the appeal in judgment from the bench. These are our written reasons for doing so. [3] The following facts are taken from the trial judgment or are uncontroverted. On June 23, 2007, Cst. Lariviere and Cst. Hoffman were dispatched to the farm of Mr. Severight for the purposes of arresting Mr. Severight’s son. They were told before they left their detachment that Mr. Severight’s son could be violent, and Cst. Lariviere was issued taser. Both officers were armed with guns, batons and pepper spray. [4] The two officers arrived at the Severight farm about noon. After briefly questioning Mr. Severight’s wife, they determined that the son was not at home. As they were finishing their conversation, Mr. Severight arrived home, and they proceeded to ask him about the whereabouts of his son. The questioning of Mr. Severight took place in the yard near the Severight home. [5] At some point during the questioning, Mr. Severight started to walk away. Cst. Lariviere followed him, demanding to know where Mr. Severight was going and instructing him to stop. In the course of the brief exchange that followed, Mr. Severight became angry, turned abruptly and came back towards Cst. Lariviere. As Cst. Lariviere continued to walk towards Mr. Severight, the distance closed quickly between them. When the two were standing directly opposite each other, Mr. Severight raised his hand and pointed his finger at Cst. Lariviere’s face. Using colourful language, he yelled at Cst. Lariviere to leave his land. Cst. Lariviere “pushed” away the finger, and Mr. Severight brought his finger up again, and repeated his instruction to leave. [6] After Mr. Severight brought his extended finger up second time, Cst. Lariviere took his pepper spray out of its holder. He stepped back and sprayed one burst of pepper spray in Mr. Severight’s face. Mr. Severight fell to the ground. Cst. Lariviere now had his baton out. Mr. Severight started to get up and Cst. Lariviere ordered him to remain on the ground. Mr. Severight obeyed. The officers backed away and drove back to their detachment. As they left, they saw Mr. Severight rushing into the house. Cst. Lariviere estimated that this entire exchange, from when Mr. Severight started to walk towards the officers until he was lying on the ground, lasted “three or four seconds” only. Cst. Hoffman spoke in terms of “few” seconds. III. Decision of the Trial Judge [7] Cst. Lariviere testified that when Mr. Severight started to walk away he thought that Mr. Severight was “getting gun.” When Mr. Severight turned around, approached him and waved an extended finger in his face, Cst. Lariviere testified that he became afraid that Mr. Severight was going to punch him. In assessing these fears, the trial judge quoted the following passages from the cross-examination of Cst. Lariviere: Q. What was it about Mr. Severight—anything about Mr. Severight that told you he was livid? A. He was livid, all of it put together. Q. What's all of it? All of it. Now, I'm—I'm hoping this—this explains. Like, for example, if there is somebody on traffic stop that may do, and they say—they swear at me, "You're jerk. You don't have to write tickets." That's angry. When you approach, and you're yelling, and your posture is aggressive, you're coming towards me, and you're actually very, very intimidating, that is in my opinion livid. That's how describe it. I'm trying to be describing—it's more than angry. If he's standing this far away, saying, "F you," and wouldn't be as intimidated. There's a—there's difference, is what I'm trying to— Q. And you would have— A. —and he was livid. He was at the top of how angry you could be. Angry enough that would consider, like, rage. Like, it's angry, like that. [Unreported reasons, dated October 28, 2008.] [8] The trial judge accepted Cst. Lariviere’s evidence that he had been afraid, but he concluded that Cst. Lariviere misinterpreted Mr. Severight’s actions and had not been listening to what Mr. Severight was saying: [13] The defendant testified that he felt threatened by having this large man turn around and advance toward him, pointing his finger, however Mr. Severight had stopped and turned around because Constable Lariviere himself had said "Stop, where are you going?". [14] The defendant was obviously not listening to what Stanley was saying about getting off the property, nor was he hearing Mr. Severight’s words in evaluating whether Stanley was livid mad, or little angry, or frustrated, as stated by Constable Hoffman. [9] The trial judge made specific finding of fact that Mr. Severight did not assault Cst. Lariviere: [15] Specifically, in my opinion none of the conduct of Stanley Severight amounts to an assault on the person of the Defendant, the Defendant was not touched by Stanley, nor did Stanley attempt or threaten by an act or gesture to apply force to the Defendant. [10] The trial judge then considered whether the defence of self-defence was available to the accused. This required the trial judge to consider: (i) whether Cst. Lariviere had been operating under reasonable mistake of fact; and (ii) whether the force used by Cst. Lariviere in reacting to the perceived threat had been justified. The trial judge referred to R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.) wherein Martin J.A. wrote on behalf of the Court (at pp. 108-09): The accused's subjective belief that he was in imminent danger of death or grievous bodily harm and that his action was necessary in self-defence was, however, required to be based on reasonable grounds. In deciding whether the accused's belief was based upon reasonable grounds the jury would of necessity draw comparisons with what reasonable person in the accused's situation might believe with respect to the extent and the imminence of the danger by which he was threatened, and the force necessary to defend himself against the apprehended danger. Notwithstanding particular passages in the charge, taken by themselves, might imply that the issue was whether what the accused did was necessary or reasonable to protect himself, in my view, the charge considered as whole, correctly instructed the jury that whether the force used by the appellant was justifiable in self-defence under s. 34(2) of the Code depended upon whether he acted under reasonable apprehension of death or grievous bodily harm, and whether he believed on reasonable and probable grounds that he could not otherwise preserve himself from death or grievous bodily harm. [11] Using language similar to that taken from Baxter, the trial judge concluded his reasoning: [17] In my opinion the Defendant was mistaken in his belief that he was in imminent danger. It is however my opinion that even if his mistaken belief permitted the use of force as self defence, the use of pepper spray was excessive and not warranted. There were two well armed police officers present, and one unarmed land owner telling them to leave. [18] have considered that person defending himself from an attack, reasonably apprehended, cannot be expected to weigh to nicety the exact measure of necessary defensive action, but, armed with pepper spray, in the presence of another constable being told to leave by land owner is not the sort of situation where would conclude that an attack is reasonably apprehended. He rejected the defence of self-defence for these reasons, and found Cst. Lariviere guilty as charged. IV. Decision of the Summary Conviction Appeal Judge [12] Cst. Lariviere appealed to the Queen’s Bench. The learned appeal judge found two reviewable errors. First, he concluded that the trial judge’s reasons were inconsistent on the point of whether Cst. Lariviere reasonably believed that he was about to be grievously harmed: [25] Although not clearly articulated paragraph 17 appears to reflect finding by the trial judge that either he was satisfied that Constable Lariviere used force to repel the attack of Mr. Severight because he was under mistaken, but reasonable belief of an apprehension of grievous bodily harm and he believed the force was necessary to protect himself from grievous bodily harm or that the trial judge had reasonable doubt as to those facts. In coming to this conclusion the trial judge must have concluded that Constable Lariviere's mistake was reasonable, one that an ordinary person using ordinary care could have made in the same circumstances. [26] However in paragraph 18 the trial judge would appear to come to the opposite conclusion in that he says he would not conclude an attack is reasonably apprehended in circumstances where Constable Lariviere was armed with pepper spray and there was another officer present.... [13] Second, the appeal judge found that “the trial judge did not direct himself to all of the relevant evidence,” and in particular that the trial judge did not “address Constable Hoffman's evidence that he viewed Mr. Severight as threat to Constable Lariviere—a threat that could have physically harmed the accused” (at para. 28). The appeal judge also took issue with the trial judge’s failure to note certain facts relevant to the issue of proportionality: [30] Constable Lariviere testified that once Mr. Severight turned around, given the few seconds it took before Mr. Severight had his finger in his face he did not have time to tactically reposition. It was Constable Lariviere's view that given the brief time frame and in the context of Mr. Severight's rage, proximity and finger in his face, trying to talk him down was not an option. He then attempted to get Mr. Severight to back off by using empty hand control and telling Mr. Severight to get his hand out of his face. That did not work and Mr. Severight continued to yell at him and wave his finger in his face. Again the trial judge did not direct himself on all of the relevant evidence resulting in reviewable error. He does not address Constable Lariviere's assessment of the options available to him in the context of what he was facing. Instead, the trial judge focused on the fact there were two officers present. The appeal judge quashed the conviction and ordered new trial. V. The Appeal to this Court [14] The Crown appealed to this Court pursuant to s. 839 of the Criminal Code on the basis that the appeal judge had misinterpreted the trial judge’s reasons and exceeded the bounds of appellate review. Both of these issues constitute questions of law for which leave can be granted. In our respectful view, the appeal judge erred in both ways suggested by the Crown. [15] With respect to the first issue, the trial judge’s reasons do not reflect an inconsistency. At no point in his reasons did the trial judge find Cst. Lariviere’s mistake of fact to be “reasonable.” Rather, he engaged in classical alternative reasoning—holding that even if Cst. Lariviere’s mistake of fact had been reasonable, he would have rejected the defence of self-defence on the basis that the use of pepper spray was not proportionate response. [16] With respect to the second issue, the standard of appellate review is well known. The applicable test is whether properly instructed jury acting judicially could reasonably have rendered the verdict. An appellate court must re-examine and to some extent reweigh the evidence and its effect, but must not simply substitute its view of the evidence for that of the trial judge (see: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168). [17] Moreover, the failure on the part of trial judge to refer explicitly to certain evidence does not, in and of itself, make verdict unreasonable: ... [A] trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial. It is clear from the reasons that the trial judge considered the accused's evidence carefully, and indeed accepted it on some points. In these circumstances, failure to mention some aspects of his evidence does not constitute error ... (see: R. v. R.E.M., 2008 SCC 51 (CanLII); [2008] S.C.R. 3). [18] In this case, while the trial judge did not refer to all of the evidence, he did not err by failing to do so. In the above words of McLachlin C.J. from R.E.M., the trial judge grappled with the substance of the live issues presented by the trial. The crucial issues were: (i) whether Mr. Severight assaulted Cst. Lariviere; (ii) whether Cst. Lariviere reasonably believed that he was being assaulted; and (iii) if so, whether his response was proportionate. [19] Three witnesses testified as to the incident that gave rise to the charge: Cst. Hoffman and Mr. Severight for the Crown, and Cst. Lariviere in his own defence. Each of the three recounted the incident in slightly different ways. However, the trial judge did not fall into the trap of preferring the evidence of one over the other, but rather drew conclusions regarding what happened based on the whole of the evidence. Indeed, he may very well have accepted the accused’s testimony at face value. [20] The following example taken from the trial judge’s reasoning illustrates how he treated the accused’s testimony. Mr. Severight testified that he told the officers to leave his land only once when Cst. Lariviere brushed away his finger. Mr. Severight also testified that he put his finger in Cst. Lariviere’s face only once. Cst. Lariviere testified that Mr. Severight did it twice and that he actually grabbed the finger rather than brushed it away. On the other hand, Cst. Hoffman testified that Mr. Severight told them twice to leave and that Cst. Lariviere pushed away the finger rather than grabbed it. The trial judge accepted Cst. Lariviere’s statement that the finger incident occurred twice, which formed the basis for him to find that the instruction to leave the yard also occurred twice. These are seemingly minor matters, but they were issues that the trial judge had to resolve in order to gauge: (i) the actual threat, if any, faced by the accused; (ii) the reasonableness of the accused’s belief that he was being threatened; and (iii) the proportionality of his response. [21] While it is true that Cst. Hoffman testified in cross-examination that he was preparing for an altercation and that he was afraid there was going to be fight, the trial judge tested that evidence against what Cst. Hoffman actually did. He noted that Cst. Hoffman “at no time felt endangered, and at no time took any steps such [as] pulling out his baton to deal with dangerous or threatening situation” (at para. 11). This is not an unreasonable conclusion. [22] Capturing all of the nuances of trial in written reasons is difficult task. The trial judge in this case determined what happened on the whole of the evidence based on what he found to be the connections between the evidence of the three witnesses. An appellate court is not entitled to overturn a verdict simply on the basis that the trial judge placed more weight on some portions of the record than others. Conclusion [23] We grant leave to appeal and allow the appeal. In the result, the conviction is restored.
The accused, a member of the RCMP, was convicted after trial of assault with a weapon contrary to s. 267(1)(a). The accused successfully appealed his conviction to the Court of Queen's Bench where a new trial was ordered. The Queen's Bench Judge held that the trial judge's reasons were inconsistent on the whether the accused reasonably believed that he was about to be grievously harmed and that the trial judge erred by not considering the evidence of the other police officer who testified at the trial. The Crown appealed to the Court of Appeal arguing that the summary conviction appeal judge misinterpreted the trial judge's reasons and exceeded the bounds of appellate review. HELD: The appeal was allowed and the conviction restored. The summary conviction appeal court judge erred in finding that the trial judge's reasons were inconsistent. The trial judge engaged in classical alternative reasoning. While the trial judge did not refer to all of the evidence, he did not err in failing to do so. The trial judge grappled with the substance of the issues presented at the trial which were whether the accused had been assaulted by the complainant, whether the accused reasonably believed that he was being assaulted and whether his response was proportionate. The trial judge based his conclusions on the whole of the evidence rather than preferring the evidence of one witness over another. An appellate court is not entitled to overturn a verdict simply because the trial judge placed more weight on some portions of the record than others.