nan Court of Appeal for Saskatchewan Docket: CACR2532 Citation: Power, 2016 SKCA 29 Date: 2016-03-07 Between: Her Majesty the Queen And Robert Kenneth Power Before: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Ryan-Froslie In dissent: The Honourable Mr. Justice Caldwell On Appeal From: 2014 SKQB 356 (CanLII), Regina Heard: 16 September 2015 Counsel: W. Dean Sinclair, Q.C., for the Appellant Aaron A. Fox, Q.C., and Matt Schmeling for the Respondent Ottenbreit J.A. I. Introduction [1] The respondent, Robert Kenneth Power (Constable Power), member of the Regina City Police Service, effected an arrest of Edward Stonechild in the process of which he push-kicked Mr. Stonechild in the abdomen causing Mr. Stonechild to fall backwards and injure his head. Constable Power was charged and convicted in the Provincial Court with committing an assault causing bodily harm on Mr. Stonechild contrary to s. 267(b) of the Criminal Code. Constable Power appealed his conviction to the Court of Queen’s Bench sitting as summary conviction appeal court. The summary conviction appeal court judge (appeal court judge) determined that the Provincial Court judge had erred in finding Constable Power guilty, set aside the conviction and entered an acquittal (appeal decision). [2] The Crown now applies for leave to appeal the decision of the summary conviction appeal court pursuant to s. 839 of the Criminal Code. For the reasons hereinafter set forth, leave is granted, the appeal is allowed and the conviction of Constable Power entered in the Provincial Court is reinstated. II. Facts and Background [3] Mr. Stonechild was homeless man. He was chronic alcoholic who habitually consumed hairspray, hand sanitizer or rubbing alcohol. He wandered around downtown Regina usually in state of intoxication. Mr. Stonechild was in extremely poor physical condition and blind in one eye. He was described as having no muscle. He was very frail, slow moving and was small man weighing no more than 120 to 140 pounds. He was also cognitively impaired. [4] Constable Power was 6’1” in height and, at the time of the offence, weighed approximately 215 pounds and was in good physical condition. Constable Power normally patrolled the downtown area of Regina. As consequence, over time Constable Power saw or had dealings with Mr. Stonechild in excess of 100 times. He had arrested Mr. Stonechild many times before. Constable Power knew about Mr. Stonechild’s physical and mental condition from his previous dealings with him. He had arrested him many times for being intoxicated in public place and had taken him to the Brief Detox Unit (BDU) to sleep it off. Although Mr. Stonechild was generally cooperative when he was being arrested or taken to the BDU, he could at times become abusive. Constable Power had seen Mr. Stonechild resist arrest passively and physically on occasion. [5] On May 7, 2012, when Constable Power encountered Mr. Stonechild on patrol, he believed Mr. Stonechild was intoxicated and told him that he should go to the BDU which was nearby or be arrested. To ensure his compliance, Constable Power, who was in his car, followed Mr. Stonechild as he walked towards the BDU. When Mr. Stonechild got to the BDU he did not enter. Rather, he sat on short cement wall nearby. Constable Power parked on the street approximately four or five feet away. He again told Mr. Stonechild that if he did not go into the BDU he would have to go to jail. When Mr. Stonechild made no attempt to enter the BDU, Constable Power informed him that he was under arrest. Mr. Stonechild twice replied, “Fuck you, do you want to fight?” [6] Constable Power exited his vehicle to effect an arrest and began putting on his protective gloves. He did this because he believed Mr. Stonechild to be both HIV and Hepatitis positive. [7] What transpired next between Constable Power and Mr. Stonechild was captured on video by the BDU security camera. The video shows that after Constable Power arrived in his police vehicle, he exited from the driver’s door. He approached Mr. Stonechild and appeared to be putting on some gloves. At this time, Mr. Stonechild took two or three steps towards Constable Power. His hands were at his side as he did so but they were clenched. Mr. Stonechild covered some of the distance between himself and Constable Power. Constable Power took one step forward and push-kicked Mr. Stonechild in the abdominal area. The force of the kick bounced Mr. Stonechild backwards and he fell hitting his head on the cement wall. Constable Power then approached him, rolled him over and handcuffed him. Mr. Stonechild’s head was bleeding as result of the fall. [8] Immediately after the incident Constable Power told Mr. Heathcot, who assisted in attending to Mr. Stonechild after the arrest, that Mr. Stonechild had charged at him, that he had to take him down and that he had kicked him. When Constable Power’s Sergeant arrived at the scene, Constable Power lied about what happened and indicated that he had pushed Mr. Stonechild. He maintained that story until the video of the incident was obtained. Only then did he admit that he had kicked Mr. Stonechild. [9] At trial Constable Power stated that Mr. Stonechild was yelling and came at him rather quickly. He said that his head was down as Mr. Stonechild came towards him because he was distracted by the task of putting on his gloves. He indicated that his first reaction was to kick Mr. Stonechild in the abdomen. He was not expecting Mr. Stonechild to come towards him. Constable Power testified that he kicked Mr. Stonechild to defend himself and he believed Mr. Stonechild was going to hit him. He testified that he believed Mr. Stonechild’s fists were raised in front of his body as he approached. He said all of this happened within one or two seconds. [10] At the trial, Joel Johnston, defence witness, was qualified as an expert to offer opinion evidence about the use of force by police officers and the training of officers in the use of force. He testified the kick was well-executed front kick and that it was intended to repel aggression. He stated that Constable Power’s use of force in this case was proportional to the assaultive behaviour that he faced and was consistent with police training. [11] Mr. Stonechild testified at trial but could not remember the incident. III. Decision of the Trial Judge [12] The question for determination of the trial judge was whether Constable Power used more force than was necessary to either defend himself under s. 34(1) of the Criminal Code or effect the arrest of Mr. Stonechild under s. 25(1) of the Criminal Code. [13] Because s. 34(1) of the Criminal Code had been repealed and replaced by new self-defence provisions at the date of trial, the trial judge addressed the issue of whether the new provisions or the law as it read in May 2012 applied. The trial judge held that the provisions in effect at the time of the offence applied. [14] Before the trial judge, the Crown and defence agreed that the onus was on the Crown to prove that any defences afforded by ss. 25(1) and 34(1) were inapplicable. They agreed that the defence of self-defence has subjective and an objective component, and would fail if the Crown proved (i) Constable Power did not subjectively believe the force used was necessary, or (ii) the level of force used was not objectively reasonable in all the circumstances. They also agreed that when measuring the reasonableness of the force, the Court should not expect an accused person to weigh that force to nicety. [15] After reviewing the jurisprudence regarding self-defence, the trial judge began his own analysis of the circumstances as follows: [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. have serious reservations about Mr. Power’s credibility and, in particular, whether he regarded Eddy as credible threat. However, 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. [16] The trial judge found that the force used by Constable Power was excessive on an objective basis. His reasons for this conclusion included: (a) Mr. Stonechild did not strike blow and had no actual physical contact with Constable Power nor was he close enough to Constable Power to strike him before Constable Power kicked him; (b) Constable Power had options that involved less force: verbal commands, holding his arms up to block blow, pushing Mr. Stonechild backwards, or stepping out of the way; (c) Constable Power was professional police officer acting in the course of his duty and Mr. Stonechild and the public should be able to expect that such officers will look for viable options that do not involve extreme force; (d) the force used was clearly excessive having regard to the physical abilities and/or disabilities of each man; and (e) Constable Power was fully aware of Mr. Stonechild’s disabilities, physical capabilities and that Mr. Stonechild was intoxicated and could not put up much of fight. He knew he was bigger and stronger than Mr. Stonechild and in better shape. [17] The trial judge concluded: [64] In my view, consideration of all of these factors speaks to conclusion that 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. 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, found myself setting out and answering this question. Eddy Stonechild approached, perhaps somewhat quickly, Constable Power after challenging him to 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? 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 result, find Constable Power guilty of the charge of assault causing bodily harm. [18] In the course of coming to the conclusion he did, the trial judge instructed himself to disregard Mr. Johnston’s opinion that Constable Power’s use of force was proportionate indicating that there is difference between whether the force used was consistent with police training and whether the force used was lawful. IV. Decision of the Summary Conviction Appeal Court [19] Before the appeal court judge, Constable Power argued that the trial judge had erred by (i) disregarding the evidence of Mr. Johnston, (ii) inappropriately taking into account certain factors in his analysis of whether the level of force was objectively reasonable, and (iii) measuring the force used by Constable Power to nicety. He submitted, as well, that the verdict was unreasonable and not supported by the evidence. He did not argue that the trial judge had used the wrong test to analyze whether the force used was more than necessary. Indeed, the notice of appeal to the Court of Queen’s Bench assumes that the proper test is whether the level of force used was objectively reasonable. [20] The appeal court judge declined to decide which provisions of the Criminal Code, old or new, applied. He determined that the best approach to s. 34(1) would be to decide the case on the basis of whichever wording of s. 34(1), old or new, was more beneficial to Constable Power. [21] The appeal court judge determined that the video was significant piece of evidence and that the trial judge erred by failing to analyze the timing of the events depicted. As such, the appeal court judge found it was open to him to review the video in detail and draw his own conclusions from it. [22] The appeal court judge determined that the trial judge properly focussed on the only issue to be decided, i.e., whether the force used by Constable Power was no more than necessary for him to defend himself, or, put another way, whether the Crown proved beyond reasonable doubt that Constable Power had used more force than was necessary. He stated that this called for proportional inquiry which was neither strict nor exclusively objective, and that flexible and tolerant approach in applying the relative subjective and objective tests was necessary as opposed to one that is “precisely calculated”. [23] The appeal court judge then determined the trial judge had made number of errors as follows: (a) he transformed the subjective and objective aspects of the proportional inquiry into purely objective test; (b) once he accepted that Constable Power subjectively believed that his use of force was reasonable, the trial judge should have inquired whether the Crown had proven beyond reasonable doubt the absence of any reasonable grounds for that subjective belief or, put another way, whether there was any doubt that reasonable person in the situation of Constable Power might have used the force actually employed; (c) his approach caused him to assess the correctness of Constable Power’s subjective belief in the reasonableness of the force used and, as consequence, no allowance was made for the prospect that his subjective belief might have been mistaken; (d) his objective approach caused him to disregard the evidence of the expert witness, Mr. Johnston, as to whether the use of force was carried out in accordance with police training, given the predicament Constable Power was in and the strategies available to extricate himself; and (e) by considering the distance between Constable Power and Mr. Stonechild, the disparity in their strength, agility, fitness and an array of options with lesser force, he weighed to nicety the force of Constable Power’s response to Mr. Stonechild’s impending attack. [24] The appeal court judge concluded: [72] Having found that the trial judge erred in the approach he took to measure the appellant’s use of force, and in disregarding the evidence of Mr. Johnston, the appeal must be allowed and the verdict of guilty must be set aside. Further, as the facts are not in substantial dispute, find it is open for me to assess the evidence and arrive at conclusion. Much of this assessment has been done in considering the manner in which the trial judge approached the evidence he received. To sum up that assessment here, find that there are certain factors which cannot go unnoticed. They include: a. the history between the parties, including the appellant’s knowledge that Mr. Stonechild suffered from Hepatitis and was HIV positive; b. the limited time the appellant had to react once he apprehended Mr. Stonechild’s attack; c. the potential harm the appellant faced if he was struck or spit upon; d. the training the appellant received; and e. the fact that the force used was in keeping with the training provided to police officers. In my view, these factors raise significant doubt of the appellant’s guilt. In particular, cannot find that the Crown has discharged the burden of proving, beyond reasonable doubt, that the option used by the appellant was not one that reasonable person in the position of the appellant might be expected to employ. It necessarily follows that verdict of not guilty must be entered. [25] The Crown raises the following issues in this appeal: (a) Did the appeal court judge misinterpret ss. 25(1) and 34(1) of the Criminal Code? (b) Did the appeal court judge misapprehend the evidence and the trial judge’s reasons for judgment? (c) Did the appeal court judge err by applying the wrong standard of appellate review? [26] Two preliminary matters warrant mention. Before this Court, both the Crown and the defence accepted that the provisions of s. 34(1) of the Criminal Code as it read prior to May 2012 were applicable. This accords with two recent cases. Both Evans, 2015 BCCA 46 (CanLII), 321 CCC (3d) 130, and Bengy, 2015 ONCA 397 (CanLII), 325 CCC (3d) 22, conclude that the amendments to s. 34(1) of the Criminal Code made effective after March 2013 are prospective in effect. agree with that conclusion. [27] The provisions of the Criminal Code in May 2012 read as follows: 25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (b) as peace officer or public officer, 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. nan 34 (1) Every one 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. [28] Additionally, the analysis that follows does not in any way ignore the fact that police officers every day place themselves at risk doing dangerous and demanding work in order to protect the citizens of this country. It is an honourable profession worthy of the respect of all citizens. In carrying out their duties, acknowledge that they often must use force. agree with the longstanding principle that the degree of force used by an officer in effecting an arrest or in defending himself or herself should not be weighed to nicety. Nevertheless, there are principles set out in our law which govern the use of force for defensive purposes or the exercise of powers of arrest and they apply to police officers. turn now to the merits of this appeal. A. Did the summary conviction appeal court judge misinterpret ss. 25(1) and 34(1) of the Criminal Code? [29] The jurisprudence regarding ss. 25(1) and 34(1) is well established and the principles to be applied are fundamentally the same for both provisions. In dealing with s. 25(1), the Supreme Court of Canada in Nasogaluak, 2010 SCC (CanLII), [2010] SCR 206 [Nasogaluak], said: [34] Section 25(1) essentially provides that police officer is justified in using force to effect lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits police officer from using greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent suspect from fleeing to avoid lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in less violent manner. [35] Police actions should not be judged against standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.): In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [Emphasis added] [30] The Court in Nasogaluak also stated at para 32 that the force used by peace officer in the execution of his duty is constrained by principles of proportionality, necessity and reasonableness. It approved the following statement by the Alberta Court of Appeal in Nasogaluak, 2007 ABCA 339 (CanLII), 2008 WWR 387, of the legal principles involved in deciding whether force is excessive: [21] Section 25(1) of the Criminal Code provides that police officer, if he acts on reasonable grounds, is authorized in using as much force as is necessary for the purpose of making an arrest. The test is whether the application of force was objectively reasonable, having regard to the circumstances and dangers in which the officer found himself or herself: Crampton v. Walton, 2005 ABCA 81 (CanLII), 363 A.R. 216 at para. 42. [31] Turning to s. 34(1), the four components in that defence and the applicable onus of proof have been set out in Piapot, 2014 SKCA (CanLII), [2014] WWR 79 [Piapot]: [28] It is common ground that the elements of successful s. 34(1) defence are: (a) the accused must have been unlawfully assaulted or perceived that he or she would be unlawfully assaulted by the victim; (b) the accused must not have provoked the assault; (c) the force used by the accused was not intended to cause death or grievous bodily harm; and (d) the force used by the accused was no more than necessary to enable him or her to defend himself or herself. See: R. v. Raphael, 2009 SKCA 16 (CanLII), [2009] W.W.R. 611 at para. 12. [29] In order to deny an accused person the defence of self-defence, the Crown must prove, beyond reasonable doubt, that any one of these four elements is not present. See: R. v. Hebert, 1996 CanLII 202 (SCC), [1996] S.C.R. 272 at para. 23. [Emphasis added] [32] In summary, for both ss. 25(1) and 34(1), the force used by police officer or person acting in self-defence must be no more than necessary to enable him or her to defend themselves or effect an arrest. That force need not be measured with exactitude or “to nicety” when considering the question of proportionality. The law provides for flexible or tolerant approach to the objective measure of whether force is proportionate (Piapot at para 46). [33] How to approach the issue of proportionality was explained in Szczerbaniwicz, 2010 SCC 15 (CanLII), [2010] SCR 455 [Szczerbaniwicz]. Although that case dealt with defence of property, Abella J. stated (at para 18) that the defence of property provisions of the Criminal Code dealing with the level of force are similar to other Criminal Code provisions incorporating the words “no more force than necessary”. She stated: [20] The “proportionality” approach has more recently been characterized as an inquiry into whether the force used was “reasonable in all the circumstances”, as Charron J. confirmed in R. v. Gunning, 2005 SCC 27 (CanLII), [2005] S.C.R. 627, at para. 25, case involving s. 41(1). [21] 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 belief must be based on reasonable grounds. [34] In support of this approach, Abella J. cites the statements of Fraser C.J.A. in Kong, 2005 ABCA 255 (CanLII) at paras 95-100, [2006] WWR 405 [Kong], appeal allowed on other grounds 2006 SCC 40 (CanLII), [2006] SCR 347, the relevant portions of which read as follows: [95] Since the law of self-defence is rooted in necessity, self-defence properly stops where necessity ends. As with the defence of necessity, proportionality is required between the harm inflicted and the harm sought to be avoided. In other words, the responsive force must have been proportionate to the assault threatened or inflicted. [96] Therefore, in assessing whether there is an air of reality to the proportionality requirement, that is whether the responsive force was no more than necessary in the circumstances, judge must also consider the following: 1. the nature and extent of the assault or threatened assault the accused faced (the “threat assessment”); and 2. the nature and extent of the responsive force the accused actually used. [97] In my view, the threat assessment involves modified objective inquiry. After all, in assessing whether an accused’s responsive force meets the proportionality requirement, the situation in which that particular accused finds himself or herself is highly relevant. The fact that the threat assessment by the accused is based in part on trying to infer someone else’s intentions also explains why court must focus first on an accused’s subjective perception of the degree of violence of the assault or threatened assault. Nevertheless, an accused’s belief must also be reasonable on the basis of the situation he or she perceives. Indeed, factors peculiar not only to the accused, but also the alleged victim, have historically been regarded as proper considerations in assessing the nature and extent of the threat. For example, in analyzing the nature of the threat, the relative strength and size of the parties involved will be relevant consideration: R. v. Nelson (1953), 1953 CanLII 432 (BC CA), 105 C.C.C. 333 (B.C. C.A.). So too will be other personal characteristics, for example, gender and age. [100] With respect to the proportionality requirement the responsive force must have been no more than necessary in the circumstances have concluded that this should be assessed using an objective test only. By this, mean that the trial judge is to consider whether, from the perspective of reasonable person in the circumstances of the accused, there is an air of reality to an accused’s claim that the force used was objectively no more than necessary given the nature and quality of both the threat and the responsive force. That reasonable person is to be invested with the characteristics of the accused in terms of size, strength, gender, age and other immutable characteristics. If the responsive force used exceeds that which was objectively necessary, then the protection of s. 34(1) is lost. [Emphasis added, footnotes omitted] [35] On the basis of the foregoing, determination of whether force is reasonable in all the circumstances involves consideration of three factors. First, court must focus on an accused’s subjective perception of the degree of violence of the assault or threatened assault against him or her. Second, court must assess whether the accused’s belief is reasonable on the basis of the situation as he or she perceives it. Third, the accused’s response of force must be no more than necessary in the circumstances. This needs to be assessed using an objective test only, i.e., was the force reasonable given the nature and quality of the threat, the force used in response to it, and the characteristics of the parties involved in terms of size, strength, gender, age and other immutable characteristics. [36] The Crown contends that the appeal court judge fell into error and misinterpreted s. 34(1) of the Criminal Code, and by analogy s. 25(1), by using test that confused proportionate force with reasonable belief about that force. Specifically, the Crown submits that the appeal court judge erred by concluding that once the trial judge accepted Constable Power subjectively believed his use of force was reasonable, the trial judge should have gone on to inquire whether the Crown had proved beyond reasonable doubt the absence of any reasonable grounds for that subjective belief. The Crown argues that, because of this, the appeal court judge wrongly converted the inquiry in this case from one concerned with objective proportionality into one exclusively concerned with Constable Power’s state of mind and the reasonableness of his belief. [37] There is merit to this submission. The error at the crux of the appeal court judge’s decision is that he misunderstood the applicable test and inappropriately focused on Constable Power’s belief. First, he drifted into an erroneous unnecessary discussion of and emphasis on the subjective elements of self-defence. He began by referring to J.K.M.C., 1965 CanLII 720 (SK QB), [1966] CCC 380 (Sask QB), and Baxter (1975), 1975 CanLII 1510 (ON CA), 27 CCC (2d) 96 (Ont CA) [Baxter], as examples of the subjective element of s. 34(1) defence. Both those cases involved defences under s. 34(2) and not s. 34(1), both focused on the reasonableness of the accused’s belief and the application of mistake of fact to that belief. They are distinguishable from Constable Power’s case on that basis. [38] However, those cases led the appeal court judge to focus on the doctrine of mistake of fact which was not argued by Constable Power at trial and did not form part of his grounds of appeal in the Court of Queen’s Bench. As result of that focus, the appeal court judge erroneously found that the trial judge made no allowance for the prospect that Constable Power’s subjective belief might be mistaken. In fact, the trial judge had moved beyond the first two branches of the test as enunciated by Fraser C.J.A. in Kong having accepted that Constable Power’s belief was reasonable and justified using some force. In my view, the appeal court judge’s foray into this area constituted an unnecessary focus on Constable Power’s subjective belief. [39] Second, the appeal court judge focussed on the principle that the subjective and objective parts of the test must be applied flexibly and with tolerance as opposed to precisely calculated application. He suggested that when this principle is applied, the response of an accused must be measured from the perspective of that accused and that the trial judge was wrong to use purely objective test, thus rendering the subjective aspect of the inquiry essentially meaningless. He then wrongly restated the test as it relates to reasonable doubt: [64] Once the trial judge accepted (albeit reluctantly) that the appellant subjectively believed his use of force was reasonable, the correct approach called for an inquiry as to whether the Crown had proved, beyond reasonable doubt, the absence of any reasonable grounds for that subjective belief. If there was any doubt that reasonable person, in the situation of the appellant, might have used the force actually employed, such doubt was to be resolved in favour of the appellant. As result, the appeal court judge concluded the trial judge failed to determine whether there were reasonable grounds for Constable Power’s subjective belief. As previously stated, the trial judge had already resolved that issue in Constable Power’s favour. [40] The emphasis by the appeal court judge on mistake of fact and the tolerant and flexible approach to the use of force in self-defence cases led him to misinterpret Szczerbaniwicz and the applicable test. Of note, he did not deal with the reference in Szczerbaniwicz to Kong and the analysis of Fraser C.J.A. mentioned earlier. [41] As final observation, Constable Power’s position before the trial judge was that although the Court had to assess both subjective and objective components of his use of force, the level of force used must be objectively reasonable. This was consistent with the trial judge’s approach. Objective proportionality, i.e., the third branch of the test, was the only contentious issue which the trial judge had to decide given that he had accepted Constable Power was justified in his belief that Mr. Stonechild posed threat to him to which he needed to respond. Moreover, neither Constable Power’s notice of appeal nor his argument before the appeal court judge challenged the trial judge’s focus on whether the responsive force used was objectively reasonable. [42] The appeal court judge erred by misunderstanding the elements of the applicable test. He wrongly focussed on the reasonableness of Constable Power’s belief rather than an objective inquiry into the necessity of the force used as the trial judge correctly understood it to be. B. Did the summary conviction appeal court judge misapprehend the evidence and the trial judge’s reasons for judgment? [43] The Crown argues the appeal court judge was wrong to find that the trial judge disregarded the evidence of Mr. Johnston. agree with this argument. [44] The trial judge was nuanced in dealing with the evidence of Mr. Johnston. He accepted portions of his testimony but not all of it. He was entitled to do this. The trial judge accepted the evidence of Mr. Johnston with respect to the training police officers receive regarding the use of force in self-defence situations, and that the push-kick used in this case was well-executed and delivered in accordance with police training. However, he did not accept Mr. Johnston’s opinion that Constable Power acted impulsively or instinctively in the circumstances and that he used an appropriate and reasonable amount of force. Mr. Johnston was not qualified as an expert to testify about whether the force used was reasonable or proportional as matter of law and the trial judge quite properly disregarded his opinion on that point which was the ultimate issue he had to decide. In my view, the trial judge made no error in dealing with Mr. Johnston’s evidence. [45] The Crown next argues that the appeal court judge erred by considering the video in detail and drawing his own conclusions from it. The appeal court judge stated the following about the video: [39] In the matter before the court, the appellant and the Crown disagree on the extent to which this Court can review the trial judge’s findings insofar as it is based on the events depicted in the videotape. The appellant submits that, because the videotape is the principal piece of evidence in case where the facts are not in any serious dispute, this Appeal Court is in as good position as the trial judge to assess the significance of the events depicted in the video. On the other hand, the Crown contends that the trial judge’s assessment of the video evidence is entitled to the same deference as it would if the assessment were based on the viva voce testimony of witnesses describing the relevant events. [43] Nonetheless, am inclined to the view that deference must still be accorded. Having said that, the question in this case relates to the manner in which that deference is accorded. In the appeal before the court, there was no actual or substantive dispute on the evidence, and certainly no dispute as to the events depicted in the video. It must further be noted that the trial judge did not make any specific findings of fact based solely on the video. Had the trial judge made such finding, particularly as between disputed interpretations of what was depicted, am satisfied that, absent palpable and overriding error, this court ought not to substitute its findings for his. [44] This, however, is not the situation here. When the trial judge actually referred to the video, he simply narrated the events depicted in it, without specific analysis on the timing of those events, as was described in para. 18 of this judgment. In my view, the timing of the relevant events in the video is crucial to this case. Under the circumstances, it is open to this court, as part of its consideration, to review the video, in detail, and determine whether the evidence from it was reasonably capable of supporting the trial judge’s conclusion that the plea of self-defence should fail. [46] Initially, the appeal court judge purported to review the video for the purpose of determining whether the evidence from it was reasonably capable of supporting the trial judge’s conclusion that the plea of self-defence should fail, i.e., whether the verdict was unreasonable. This was proper, but the appeal court judge never did go on to determine that issue. [47] The events depicted in the video and how they occurred were, as observed by the appeal court judge, not in dispute. The summary of the video found in para 18 of the decision of the appeal court judge, although more detailed, is not substantially different than the trial judge’s summary in para of his decision except that the appeal court judge sets out the timing of the events and suggests that Mr. Stonechild’s right arm is in cocked position. [48] The appeal court judge analyzed the time stamp on the video and when certain events occurred, and concluded that timing was “crucial”. What is clear is that he reinterpreted the video. His justification for doing this was that the trial judge merely narrated the events, did not analyze the timing of events and made no findings of fact based “solely” on the video. Having concluded this, the appeal court judge determined that he need not defer to the trial judge’s treatment of the video. In my view, this was an error. [49] The trial judge had viewed the same video, was aware of the timing of events and took them into consideration when arriving at his decision. He acknowledged that Mr. Stonechild approached Constable Power “somewhat quickly” but considered that as only one factor to be analyzed with others in determining the reasonableness of Constable Power’s response. The appeal court judge, by reinterpreting the video, placed greater weight on the short time that Constable Power had to react. Absent palpable and overriding error, the trial judge is entitled to deference regarding the weight he placed on the speed at which the events unfolded as factor in his final determination. [50] Finally, the Crown submits that the appeal court judge erred in saying that the trial judge weighed to nicety the force used by Constable Power. The principle of not weighing to nicety the exact measure of defensive action is not incompatible with an objective inquiry regarding proportionality as observed by Fraser C.J.S. in Kong (ABCA): [113] Fourth, simply because perfect symmetry between threat and action may not be possible in the heat of the moment is no reason to torpedo the proportionality requirement. agree that defensive force need not be “weighed to nicety”. But not measuring something to nicety cannot be equated with not measuring it at all. Nor does this generous and understandable approach to weighing responsive force convert an objective requirement into subjective one or for that matter, modified objective one. [114] concede that tolerant approach is appropriate in assessing whether the force an accused used was, on an objective basis, no more than necessary to enable the accused to defend himself or herself. It has been suggested that as long as the responsive force is “roughly proportionate to the attack”, the courts will not be inclined to second guess an accused’s decision about the degree of responsive force needed in the circumstances. [115] However, allowing an accused considerable latitude in measuring the degree of responsive force employed was never intended to confer on an accused licence to resort to whatever responsive measures he or she thought justified, no matter how unreasonable or disproportionate those measures might be. To permit an accused to do so would collapse what Parliament intended to be an objective requirement into subjective one. Requiring defensive force under s. 34(1) to meet proportionality requirement discourages unreasonable resort to violent self-help, legitimate goal of any criminal justice system. [Emphasis added, footnotes omitted] [51] The appeal court judge focussed on this issue because of the short timespan during which the incident unfolded. The appeal court judge stated it was unfair to expect Constable Power to (i) gauge if Mr. Stonechild was close enough to punch or spit at him, (ii) consider an array of options with lesser force, or (iii) measure the disparity in strength, agility and fitness between himself and Mr. Stonechild to calculate the minimal level of force required. In my view, the appeal court judge also erred in coming to such conclusions and in finding that the trial judge weighed to nicety the force used. [52] will take these points in turn. First, although Constable Power knew Mr. Stonechild was HIV and Hepatitis positive, he did not testify that he feared he would be spit on. His only concern was that Mr. Stonechild was going to hit him and, in fact, despite the speed of the interaction between them, Constable Power did gauge that Mr. Stonechild was close enough for him to possibly strike him and his belief was that Mr. Stonechild might try to strike him. This point is neither here nor there because the trial judge accepted Constable Power believed Mr. Stonechild might strike him. [53] Second, with respect to the use of force options available to Constable Power, it is significant that he had previously arrested Mr. Stonechild on many occasions in the past. On one occasion, Mr. Stonechild had raised his arms aggressively as if he was attempting to hit Constable Power—arguably more aggressive stance by Mr. Stonechild than he took on May 7, 2012. Constable Power, on that occasion, subdued him with joint lock. Constable Power was familiar with Mr. Stonechild, his capabilities and his condition. Although police officer need not precisely calculate the minimum amount of force necessary, nevertheless, even if somewhat surprised by Mr. Stonechild during the short duration of the incident, Constable Power should have been able to counteract Mr. Stonechild, whose capabilities he knew well, with any one of number of options requiring less force based on the use of force continuum or model for which he had received training. [54] turn now to the third point made by the appeal court judge. Factors such as disparity in strength, agility, size and fitness as well as sobriety must be taken into account by the officer in order to respond properly to perceived threat. These factors are at the core of determining the amount of force to be used. In this case, Constable Power was well aware of these factors because he was familiar with Mr. Stonechild and had dealt with him many times in the past. The short time which he had to react could not have made him less aware. These same factors can be taken into account when determining the objective proportionality of the response without ignoring the requirement that the force used must not be weighed to nicety. In my view, the trial judge did just that. By considering the factors set forth in his decision he was not weighing Constable Power’s use of force to a nicety. Rather, he was determining the objective reasonableness of that force based on those factors. [55] That said, do not wholly agree with the trial judge’s observations of what lesser force might have been used by Constable Power. do not believe that police officer is required to put up his arms or use any other part of his body to block blow as less forceful option when defending himself or herself. In short, police officer is entitled to and must protect himself from an impending assault and is not required to absorb the force of that assault first. Nor must the officer who is effecting an arrest necessarily retreat or step aside. Much will depend on the circumstances. C. Did the summary conviction appeal court judge err by applying the wrong standard of appellate review? [56] The Crown argues that the appeal court judge failed to apply the test set out in Biniaris, 2000 SCC 15 (CanLII), [2000] SCR 381 [Biniaris], and determine whether the trial judge’s finding that the force used was disproportionate was reasonable and supported by the evidence. [57] Under s. 813 of the Criminal Code, which governed Constable Power’s appeal to the Court of Queen’s Bench, there is no appeal on issues of fact per se. Factual issues on an appeal to summary conviction appeal court are subsumed under s. 686(1) of the Criminal Code which allows challenge of verdict on the basis it is unreasonable and cannot be supported by the evidence. The standard of review of conviction appealed on this basis has been summarized in R.P., 2012 SCC 22 (CanLII), [2012] [9] To decide whether verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, and R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381, at para. 36, determine whether the verdict is one that properly instructed jury or judge could reasonably have rendered. The appellate court may also find verdict unreasonable if the trial judge has drawn an inference or made finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40 (CanLII), [2011] S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC (CanLII), [2007] S.C.R. 190). Although some re-examination and reweighing of the evidence is allowed to determine if the evidence was reasonably capable of supporting the trial judge’s conclusion (R Burns, 1994 CanLII 127 (SCC), [1994] SCR 656), the appeal court judge cannot substitute his own view of the evidence for that of the trial judge. [58] In this case, the appeal court judge properly instructed himself on the Biniaris standard of review but failed to analyze the decision of the trial judge based on that standard, namely, whether the evidence was reasonably capable of supporting the trial judge’s conclusion based on the evidence as a whole. [59] The Crown argues that the issue of the proportionality of the force used is question of fact and, therefore, the appeal court judge should have deferred to the trial judge’s determination of that issue absent palpable and overriding error. In my view, the issue is one of mixed fact and law. It is one that is, however, heavily fact-laden. In Guay, 2008 NBCA 72 (CanLII), 337 NBR (2d) 252, case involving sections somewhat similar to ss. 25 and 34, Richard J.A. explains this point: [26] adopt Wittmann J.A.’s observation that “[t]he objective measurement of proportionate force in self-defense cases requires tolerant approach” (para. 209) and his reference in the next paragraph to the text Canadian Criminal Law (4th Ed.) (Scarborough, Ont: Carswell, 2001), where Professor Don Stuart characterized, at p. 478, the judicial attitude to self-defense as one of “flexibility”. However, even with tolerant and flexible approach, there will be cases where the force used cannot be considered reasonable in the circumstances. Identifying those cases necessarily involves fact-laden findings that must be made by trier of fact. The model jury instructions commonly used in this country illustrates this. In Ontario Specimen Jury Instructions (Criminal) (Toronto: Carswell, 2003), Justice D. Watt makes clear in Final 68 Justification (Preventing assault), at p. 991, that the answer to the question whether or not an accused used more force that [sic] was necessary to prevent the complainant’s assault is one that “will depend on [the jury’s] view of the evidence” and that all the circumstances must be considered as members of the jury use their “common sense, experience, knowledge of human nature, and [their] assessment of what actually happened.” Similar wording is found in the sample instructions for self-defense under s. 34(1). similar point is made in Canadian Criminal Jury Instructions, vol. 2, loose-leaf (Vancouver: The Continuing Legal Education Society of British Columbia, 2005), at 8.64-8, where the authors recommend jurors be instructed to use their common sense when considering whether the force used was no more than necessary and suggest that the judge review the evidence to be considered in deciding whether reasonable doubt exists on point. [27] Where the objective measurement of proportionate force in assessing either s. 27 or s. 37 defense requires fact-laden determinations, much deference is owed to the findings of the trier of fact. Time and again, the Supreme Court has repeated that determinations of fact, inferences of fact and the interpretation of the evidence as whole in determining questions of mixed law and fact are matters to be decided by the trier of fact, and which ought not be overturned absent palpable and overriding error: Housen v. Nikolaisen et al., 2002 SCC 33 (CanLII), [2002] S.C.R. 235; [2002] S.C.J. No. 31; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33 and H.L. v. Canada (Attorney General) et al., 2005 SCC 25 (CanLII), [2005] S.C.R. 401; [2005] S.C.J. No. 24; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25. agree with this analysis. The decision of the trial judge as to whether more force than necessary was used, based on the evidence as whole, is entitled to deference absent palpable and overriding error. [60] The appeal court judge accepted that, generally speaking, the decision of the trial judge was entitled to deference but he went on to view the evidence afresh. He gave three reasons for doing so, all of which have dealt with earlier: (i) the trial judge had made an error in law, i.e., that he had used purely objective test to measure the level of force, (ii) the trial judge had disregarded the evidence of Mr. Johnston, and (iii) the facts were not in substantial dispute. The appeal court judge, as result of this, improperly drew his own inferences and conclusions from the underlying facts and improperly reweighed the evidence. He wrongly substituted his own view of the evidence for that of the trial judge. [61] turn now to the factors informing the conclusion of the trial judge that the force used was more than necessary. For the purposes of this case, the question can be put as: Can it be said that from the perspective of reasonable person in the circumstances of Constable Power it was necessary for Constable Power to effect an arrest of or defend himself from the advance of Mr. Stonechild using the push-kick assuming that Mr. Stonechild was advancing with clenched hand or fist? The trial judge, by analyzing the factors mentioned by him, including the disparity in the stature and physical abilities of Constable Power and Mr. Stonechild and the condition of Mr. Stonechild, addressed this question on the basis of whether the push-kick used was reasonable in all the circumstances and concluded it was not. [62] The trial judge made no error in considering the factors set forth in his decision which drove his conclusion that more force than necessary was used. The decision of the trial judge is supportable notwithstanding the additional factors listed by the appeal court judge. In my view, there are other additional relevant factors disclosed by the record which are germane to the proportionality analysis: (a) Mr. Stonechild was substantially intoxicated at the time and Constable Power observed that he was unsteady on his feet as he walked toward the BDU; (b) Mr. Stonechild verbally challenged Constable Power to fight; (c) Mr. Stonechild approached Constable Power quickly with fists clenched; (d) Constable Power was still in the process of putting on his gloves when Mr. Stonechild approached him and had only second or two to react; (e) Constable Power reacted with manoeuver that was in accordance with his training; and (f) Constable Power was in the process of effecting lawful arrest of Mr. Stonechild. These factors, together with those mentioned by the trial judge, and the appeal court judge taken as whole, support the conclusion of the trial judge as being reasonable. [63] can see no palpable and overriding error in the trial judge’s interpretation of the evidence as whole in coming to the conclusion he did. In short, Constable Power’s conviction is not unreasonable in the sense of being verdict that no properly instructed trier of fact acting judicially could reasonably have rendered. It is not verdict plainly contradicted by the evidence relied on by the trial judge or by other evidence. Conclusion [64] Leave to appeal is granted. The appeal is allowed and the conviction entered by the trial judge is restored. “Ottenbreit J.A.” Ottenbreit J.A. concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. Caldwell J.A. I. INTRODUCTION [65] have read the reasons of my colleague, Justice Ottenbreit. While would grant the Crown leave to appeal, must respectfully disagree with the majority’s disposition of this matter. would dismiss the appeal. [66] The only question before the summary conviction appeal court judge [appeal court judge] was whether the trial judge had erred when he concluded the force Constable Power used against Edward Stonechild had been more than what was necessary to defend himself or to arrest Mr. Stonechild, thereby negating the constable’s defence to the charge of assault causing bodily harm contrary to s. 267(b) of the Criminal Code. While acknowledge the appeal court judge erred in his approach to answering this question, find his conclusion that the trial judge had erred is nevertheless correct. II. Scope of Appeal [67] The Crown may take an appeal to this Court from summary conviction appeal court judge’s decision, with leave to do so, on any ground that involves question of law alone: s. 839 of the Criminal Code. In this respect, the Crown first says the appeal court judge misinterpreted ss. 25(1) and 34(1) of the Criminal Code, which alleges an error of law alone. The Crown further says the appeal court judge misapprehended the evidence and the trial judge’s reasons for judgment and otherwise applied the wrong standard of review in the appeal before him. These allegations of error framed as misapprehension of the evidence or the record do not amount to errors of law alone. However, the incorrect identification and application of the appropriate standard of appellate review is an error of law alone. [68] Therefore, as see it, the questions of law alone brought before this Court are: (a) whether the appeal court judge misinterpreted ss. 25(1) or 34(1) of the Criminal Code; and (b) whether the appeal court judge chose and applied an incorrect standard of appellate review in his analysis. And, agree the Crown’s appeal is compelling on these grounds; but, nevertheless, the result of the summary conviction appeal would not have been any different under the correct interpretation of ss. 25(1) and 34(1) and the applicable standards of appellate review, as will now explain. [69] The circumstances of this matter are set forth in the reasons of the majority; but, because this matter is heavily fact-driven, will briefly revisit the narrative. To begin, the Regina Police Service has protocol for its officers to follow when they engage with an intoxicated individual who might be in need of medical attention. Under that protocol, the police summon emergency medical services when necessary; but, if the individual is amenable and capable, the police direct the individual to the Victoria Avenue Brief Detox Unit [BDU]. If the individual is uncooperative, the police arrest the individual for public intoxication. [70] Mr. Stonechild was well-known to the Regina Police Service in this respect. Entries in respect of Mr. Stonechild in the Canadian Police Information Centre [CPIC] database cautioned peace officers that Mr. Stonechild, who had been identified as being HIV and Hepatitis positive, was “contagious” and “violent” and “chronically intoxicated person.” [71] Constable Power had had numerous encounters with an intoxicated Mr. Stonechild. From this, he knew Mr. Stonechild to be generally cooperative, but sometimes aggressive or abusive. In prior encounter, when Mr. Stonechild had become aggressive and assaultive towards him and others, Constable Power had had to physically subdue him, arrest and handcuff him, and transport him to jail. That Mr. Stonechild could behave in this way was confirmed by Jon Heathcot, an emergency medical technician who worked at the BDU. He confirmed Mr. Stonechild could be very cooperative but occasionally, and unpredictably, “abusive in language or uttering threats or stating violent things he’s done. …” [72] On the day in question, Constable Power encountered Mr. Stonechild in downtown Regina. Mr. Stonechild appeared to be intoxicated. The constable spoke to him and directed him to attend the BDU, failing which he warned of an arrest for public intoxication. Constable Power then followed Mr. Stonechild in his cruiser to ensure Mr. Stonechild’s compliance with this directive. Constable Power repeated the directive twice more and Mr. Stonechild ultimately walked to the BDU, but he did not enter it; rather, Mr. Stonechild took seat on pony wall outside its entrance. Constable Power pulled up in his cruiser and parked about ten feet away, curbside, facing the wrong way in the on-coming lane. [73] While still seated in his cruiser, the constable again instructed Mr. Stonechild to enter the BDU. To which Mr. Stonechild replied: “Fuck you, do you want to fight?” At which point Constable Power advised Mr. Stonechild that he was under arrest. The constable then exited his cruiser and began putting on protective gloves preparatory to taking Mr. Stonechild into custody. As he was doing so, Mr. Stonechild began to approach him “somewhat quickly” with his fists clenched. Constable Power reacted to this by kicking out at Mr. Stonechild—with what is apparently known as push-kick or thrust-kick—the effect of which was to halt Mr. Stonechild’s forward momentum and propel him backwards. Mr. Stonechild then stumbled, fell backwards and struck his head on the pony wall. [74] When handcuffing Mr. Stonechild, Constable Power observed that Mr. Stonechild was bleeding from head wound. He called emergency medical services [EMS] and his supervisor. He also asked Mr. Heathcot to assist him. He then secured his first aid kit from his cruiser and he and Mr. Heathcot attended to Mr. Stonechild until an EMS unit arrived. The EMS unit transported Mr. Stonechild to hospital where he was treated and released. Mr. Stonechild returned to the BDU upon release from hospital. Mr. Stonechild has no recollection of any of this. [75] Fortunately, the assault was captured by the video surveillance cameras at the BDU. The video record shows Mr. Stonechild took four steps toward Constable Power—covering just over half the distance between them in about three seconds—while the constable, who had exited his vehicle and was putting on his gloves, had taken one step toward Mr. Stonechild. At this point, the constable looked up and immediately delivered push-kick to Mr. Stonechild’s abdomen. As can be seen from the time frame of the video record and from the trial judge’s findings of fact, the events culminating in this assault occurred very quickly: 0:00 to 0:30 Mr. Stonechild walks past the BDU entrance and sits on the pony wall outside 00:30 to 0:33 Constable Power arrives in his cruiser 0:33 to 0:48 Constable Power instructs Mr. Stonechild to enter the BDU Mr. Stonechild says “Fuck you, do you want to fight?” Constable Power advises Mr. Stonechild he is under arrest 0:48 to 0:53 Constable Power opens the driver’s door of his cruiser and presumably begins to put on his gloves (this is not shown in the video record) 0:53 to 1:05 Mr. Stonechild looks at the sky and around the area 1:05 Constable Power steps onto the sidewalk (only his foot is visible) 1:05 to 1:07 Mr. Stonechild stands and begins to move “somewhat quickly” toward Constable Power with his fists clenched 1:08 Constable Power push-kicks Mr. Stonechild [76] Constable Power did not describe the assault in these terms at first. Rather, he said he had panicked at seeing the blood and then lied to his supervisor by saying he had only pushed Mr. Stonechild. He retold this lie in his formal report on the incident. It was only after the video record surfaced that Constable Power admitted to having push-kicked Mr. Stonechild. Constable Power maintained he had nonetheless acted in accordance with his training by delivering push‑kick to avoid being struck by Mr. Stonechild. He testified he was not intending to injure Mr. Stonechild and did not expect the force he had used would in fact injure Mr. Stonechild. At trial, Constable Power said he had not been paying close enough attention to Mr. Stonechild when exiting his cruiser. He said he only realised Mr. Stonechild was advancing toward him when Mr. Stonechild “would have been almost on top of [him]”. He said he had used the push‑kick to avoid Mr. Stonechild striking him or coming into contact with him. Nevertheless, presumably by reason of Constable Power’s considerable lapse in judgment when reporting the incident, the trial judge understandably had “serious reservations” about his credibility. IV. Decisions Below [77] The trial judge rejected Constable Power’s defence of self-defence under the pre-2012 provisions of the Criminal Code by concluding the constable had used more force than was necessary in repelling the assault from Mr. Stonechild. In this regard, he wrote: [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. have serious reservations about Mr. Power’s credibility and, in particular, whether he regarded Eddy as credible threat. However, 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, have considered the following factors or circumstances. Firstly, note that while Constable Power testified he believed he was under attack, Eddy Stonechild did not strike 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. believe Mr. Burge is correct. Constable Power is considerably larger than Eddy Stonechild. His legs are longer than Eddy Stonechild’s arms. conclude that Constable Power kicked Eddy Stonechild and drove him backward before Eddy got close enough to the accused to actually strike blow. [61] Secondly, 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 lesser degree of force. In my view, in this case, Constable Power did have other options. 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 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. believe and conclude that he was capable of stepping out of the way and avoiding any contact. [62] Thirdly, have considered the fact that Constable Power is 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 (CanLII), the Court took particular note of the fact that the accused and the victim of the assault were in 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 similar vein, believe that when an individual is involved in an altercation with police officer acting in 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, 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 (CanLII). 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 fight. In the words utilised in some of the decisions, Eddy Stonechild was “no match” for the accused. [64] In my view, consideration of all of these factors speaks to conclusion that 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. 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, found myself setting out and answering this question. Eddy Stonechild approached, perhaps somewhat quickly, Constable Power after challenging him to 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? 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 result, find Constable Power guilty of the charge of assault causing bodily harm. [78] Constable Power appealed from the trial decision on the basis that the trial judge had erred in three ways when finding him guilty of assault causing bodily harm: (i) by disregarding expert evidence in respect of police training and the push-kick defence tactic; (ii) by inappropriately taking into account irrelevant factors in his assessment of the reasonableness of the force employed; and (iii) by gauging the force employed to nicety. [79] Before examining the trial judge’s reasons for these alleged errors, the appeal court judge conducted fairly extensive review of the case law under s. 34(1). On this basis, he concluded the trial judge had erred by rendering purely objective test from case law the appeal court judge described as calling for subjective-objective test (at paras 63-69). Notwithstanding this, the crux of the appeal court judge’s decision ultimately rested quite simply on flaws in the trial judge’s approach to the matter: [70] In respect of the other three factors considered by the trial judge, in paras. 60, 61 and 63 of his judgment, it seems the application of the objective test prompted him to do exactly what the decisions in J.K.M.C., Baxter, Kong and Piapot caution against, namely, expecting the appellant to weigh to nicety the force of his response to Mr. Stonechild’s impending attack. In this respect, it must be remembered that, once he was aware that Mr. Stonechild was coming at him, the appellant had less than second or two to react. Under such circumstances, find it was unfair to expect the appellant: 1) to gauge whether Mr. Stonechild was close enough to punch or spit at him; 2) to consider an array of options with lesser force; and 3) to measure the disparity in strength, agility and fitness so as to calculate the minimal level of force required. In my view, to criticize the appellant under these circumstances is to hold him to standard of behaviour developed in the luxury of hindsight and without regard to the training and education that informed his behaviour. [71] In this respect, am mindful of the decision in Chartier Greaves, [2001] OJ No. 634 (QL) (Ont Sup Ct). Although fatal accident action arising from an altercation with police officers, Power J. referenced, in para. 64, applicable comments and principles from earlier authorities which can be properly considered in the context of this case. Included in these references, at para. 64(i) and (k), were comments from Foster Pawsey and Draper, (1980), 28 NBR (2d) 334 (NB QB); Berntt Vancouver, 1997 CanLII 4310 (BC SC), [1997] WWR 505 (BC SC) and Levesque Zanibbi, (March 9, 1992), Sudbury 1930/87 (Ont Gen Div): (i) “Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain prisoner”. The same applies to the use of force in making an arrest or preventing an escape. But the driver of vehicle facing sudden emergency, the policeman “cannot be held to standard of conduct which one sitting in the calmness of court room later might determine was the best course.” (Foster v. Pawsey) Put another way: it is one thing to have the time in trial over several days to reconstruct and examine the events which took place on the evening of August 14. It is another to be policeman in the middle of an emergency charged with the duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver). ... (k) “It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves” (Levesque v. Zanibbi et al). [80] Having found reversible error that called for him to set aside the verdict of guilt, the appeal court judge turned to address the appropriate remedy for the error and concluded he could substitute an acquittal and, at para 72 of his decision, he wrote: Further, as the facts are not in substantial dispute, find it is open for me to assess the evidence and arrive at conclusion. Much of this assessment has been done in considering the manner in which the trial judge approached the evidence he received. To sum up that assessment here, find that there are certain factors which cannot go unnoticed. They include: a. the history between the parties, including the appellant’s knowledge that Mr. Stonechild suffered from Hepatitis and was HIV positive; b. the limited time the appellant had to react once he apprehended Mr. Stonechild’s attack; c. the potential harm the appellant faced if he was struck or spit upon; d. the training the appellant received; and e. the fact that the force used was in keeping with the training provided to police officers. In my view, these factors raise significant doubt of the appellant’s guilt. In particular, cannot find that the Crown has discharged the burden of proving, beyond reasonable doubt, that the option used by the appellant was not one that reasonable person in the position of the appellant might be expected to employ. It necessarily follows that verdict of not guilty must be entered. [81] The Crown now appeals from this result. V. Analysis [82] To begin, agree with the majority that the provisions of s. 34(1) of the Criminal Code as they stood prior to May 2012 are applicable in the circumstances of this appeal. It is also important to recall that s. 25(1) of the Criminal Code applies in this case because Constable Power had been acting in the lawful execution of his duties as peace officer when effecting an arrest of Mr. Stonechild. That is, s. 25(1) authorised Constable Power to use as much force as was necessary to effect Mr. Stonechild’s arrest. turn now to address the issues at play on that basis. [83] In Piapot, 2014 SKCA (CanLII), 433 Sask 109, Richards C.J.S. explained the practical requirements of the defence under s. 34(1) in these terms: [28] It is common ground that the elements of successful s. 34(1) defence are: (a) the accused must have been unlawfully assaulted or perceived that he or she would be unlawfully assaulted by the victim; (b) the accused must not have provoked the assault; (c) the force used by the accused was not intended to cause death or grievous bodily harm; and (d) the force used by the accused was no more than necessary to enable him or her to defend himself or herself. See: R. v. Raphael, 2009 SKCA 16 (CanLII), [2009] W.W.R. 611 at para. 12. [29] In order to deny an accused person the defence of self-defence, the Crown must prove, beyond reasonable doubt, that any one of these four elements is not present. See: R. v. Hebert, 1996 CanLII 202 (SCC), [1996] S.C.R. 272 at para. 23. [84] Of course, as the trial judge understood, Constable Power: (i) perceived that he would be unlawfully assaulted by Mr. Stonechild; (ii) had not provoked the assault; and (iii) had used force that was not intended to cause death or grievous bodily harm. The sole question for the trial judge was (iv) whether the force Constable Power had used was no more than necessary to enable him to defend himself or to effect Mr. Stonechild’s arrest. And, in his turn, the only question before the appeal court judge was whether the trial judge had erred when he concluded the force Constable Power had used against Mr. Stonechild had been more than was necessary for those purposes in the circumstances. [85] In this respect, under its primary ground of appeal, the Crown says the appeal court judge misinterpreted s. 34(1) of the Criminal Code by confusing the proportionate force principle with reasonable belief about that force. It says the appeal court judge erred by improperly reducing an examination of objective proportionality to an inquiry about the reasonableness of the constable’s subjective state of mind. [86] No doubt Nasogaluak, 2010 SCC (CanLII), [2010] SCR 206, stands for the proposition that peace officers are restricted in their use of force on citizens. At para 32, LeBel J., speaking for the Court, said “police officers do not have an unlimited power to inflict harm on person in the course of their duties”, but rather “the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.” Moreover, LeBel J. wrote (at para 35), when engaging in an assessment of this nature, police actions “should not be judged against standard of perfection”, noting “police engage in dangerous and demanding work and often have to react quickly to emergencies” and their actions “should be judged in light of these exigent circumstances.” In support of this, LeBel J. quoted from Bottrell (1981), 1981 CanLII 339 (BC CA), 60 CCC (2d) 211 (BCCA) at 218, where Anderson J.A. had said: In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [87] am persuaded the appeal court judge erred in some respects in his approach to answering the question that was before him, including in his treatment of the findings of fact on appeal. Nevertheless, am not persuaded his answer to that question is incorrect. Although he applied the wrong standard of review and couched his analysis differently than would have, find the appeal court judge correctly identified the fundamental difficulty with the trial decision—and that is this: the trial decision does not take account of important aspects of the evidence and ignores some basic legal principles at play as espoused in cases like Nasogaluak and Piapot. As interpret the appeal court judge’s reasons, at root what he said most particularly is that Constable Power—who was undoubtedly facing an unexpected assault by Mr. Stonechild—cannot be expected to have weighed with nicety the exact nature or amount of responsive force necessary to thwart that assault (see Nasogaluak at para 35; Bottrell at 218; and Piapot at para 46); but, that is exactly what the trial judge expected him to do in this case, which is an error of law on the part of the trial judge. [88] In his analysis, the trial judge quickly strayed into hindsight-reasoning, suggesting “lesser degrees of force” could have been taken ultimately concluding “a fairly minimal level of force by Constable Power was all that was reasonable and justifiable in the circumstances”. For example, the trial judge suggested Constable Power could have “hollered some sort of warning or command”, which ignores the fact the constable had already done that and had already told Mr. Stonechild he was under arrest. He “might have held up his hands and arms to block blow”, which would be to allow the assault to occur—a wholly unreasonable requirement in the circumstances. He might “simply have pushed Mr. Stonechild backward”, which is what the constable in fact did, albeit with his foot and leg. The trial judge also suggested the constable “might have stepped aside stepping out of the way and avoiding any contact”, which is not realistic option in the dynamic of lawful arrest or in the circumstances here, ignores s. 25(1), and is not required in any event (R Piapot at para 47). [89] The trial judge later said that 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”, which is to ignore the dynamics of three second encounter and to require the officer to weigh the niceties of the exact nature or amount of responsive force necessary to ward off an assault. Moreover, this statement inappropriately mischaracterises thrust-kick as extreme force, characterisation would have thought would be reserved for much greater or prolonged physical interaction or one that involved the use of weapon. [90] In simple terms, neither the Crown nor the trial judge identified any realistic option involving lesser force than that used here. One cannot simply say or assume there were number of options of lesser force available to Constable Power when that is not made out on the evidence, particularly when common sense, experience and knowledge of human nature indicate otherwise. To do so is to make palpable and overriding error of fact. [91] Regardless of how he couched it, the appeal court judge properly recognised this kind of reasoning is, in the words of Richards C.J.S. in Piapot: “exactly what the law proscribes, i.e. weighing to nicety the amount of force that was appropriate. …” Just as the accused in Piapot, Constable Power here had to react quickly and instinctively to an evolving situation and he reacted by push-kicking Mr. Stonechild just once. [92] Further, notwithstanding his statement to the contrary in para 64, the trial judge may also have erred in his reasoning by measuring the level of force exerted by Constable Power with undue regard to the injury Mr. Stonechild suffered when he fell backwards. As noted, he characterised the thrust-kick as extreme force. Then, in para 65, he wrote: 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? 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 result, find Constable Power guilty of the charge of assault causing bodily harm. [Emphasis added] If so, this was in error as the extent of Mr. Stonechild’s injuries does not indicate whether more force than necessary was used (R Piapot at para 45). [93] In addition, am unconvinced the trial judge began his analysis of the defence on the correct basis because he said “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” (para 59, emphasis added). He then seemed to question whether Constable Power had acted too pre-emptively (at para 60). The defence of self-defence does not require foreseeable or actual harm from an unlawful assault, it merely requires prospective assault simpliciter (R Piapot at para 28). Nevertheless, the trial judge went on to question whether Constable Power had honestly believed he was in danger of harm given Mr. Stonechild’s physical characteristics, state of intoxication, etc.—ultimately choosing to assume the constable had held this erroneous subjective belief, when it is clear the constable had in fact subjectively believed Mr. Stonechild was about to assault him. [94] Unfortunately, this led the trial judge into further error because, when he gauged the objective component of the defence, he measured the reasonableness of the constable’s response against his own misapprehension of what he had assumed was the constable’s subjective belief. In other words, he used grounds material to the misapprehended subjective belief to gauge its reasonableness; whereas, those grounds were less material to an assessment of the prospective assault as actually perceived by Constable Power. In the course of doing so, the trial judge improperly discounted the nature and extent of the threatened assault faced or perceived by Constable Power, suggesting that man of Mr. Stonechild’s physical stature, health and intoxicated state could not reasonably have harmed large, well-trained peace officer. Whereas, Constable Power subjectively perceived threatened assault from man whom he knew to be violent on occasion and HIV and Hepatitis positive, and who CPIC had also cautioned was “contagious” and “violent”. [95] There is, in my view, difference between the subjective perception of the degree of violence of an assault or threatened assault and the harm done or the potential for harm to be done. The difference may be subtle, but proper threat assessment is nevertheless material to the proper assessment of whether an accused’s responsive force meets the proportionality requirement (see Kong, 2005 ABCA 255 (CanLII) at paras 95-97, 200 CCC (3d) 19, reversed on other grounds 2006 SCC 40 (CanLII), [2006] SCR 347). Moreover, even under his own analysis, the trial judge failed to consider the very relevant circumstance of Mr. Stonechild’s medical status as HIV and Hepatitis positive in his assessment of the potential for harm to be done by the assault. In that the nature of Constable Power’s subjective belief as to the degree of violence (or harm) he faced is relevant to the proportionality inquiry (R Szczerbaniwicz, 2010 SCC 15 (CanLII) at paras 20-21, [2010] SCR 455), the trial judge’s misapprehension of it in this way amounts to palpable and overriding error of fact. [96] Ultimately, as the appeal court judge observed, because the trial judge erred in his approach in these ways, the trial judge failed to see the push-kick as an objectively reasonable and proportionate response in all of the circumstances of this matter. The reality of this incident is made clear by the video evidence. The threatened assault and response to it took place over matter of three seconds at most. In short, Constable Power had to react almost instantly to the threat he felt Mr. Stonechild posed to his person—there can be no question of the constable’s subjective belief in this regard. And, in this proportionality analysis, the fact Mr. Stonechild was intoxicated, frailer, shorter, lighter, slower, less agile, untrained in the use of force, etc., is still quite relevant, but it is less material to the objective determination of the reasonableness of the push-kick given the timeframe in which Constable Power had to assess the threat he faced and to respond to it. [97] When all of the circumstances are properly considered, on the facts as found by the trial judge, it seems not unreasonable to deliver single push-kick—even one as forceful as that delivered by Constable Power—to repel an aggressor who, having repeatedly defied instruction and twice uttered threats, moves unexpectedly and “somewhat quickly” with clenched fists into close proximity with peace officer who has already verbally advised the aggressor that he is under arrest. Add to this the dimension of real threat of HIV and Hepatitis infection if the aggressor is allowed to carry out an assault and push-kick response to maintain distance is all the more reasonable in the circumstances. Pointedly, even with the luxury of months to consider this encounter, no one here has been able to articulate single response of lesser force that would have been reasonable in the circumstances. [98] The defence of self-defence is made out on the proper application of the law to the facts as found by the trial judge. Given this, an acquittal ought to be entered on the charge of assault causing bodily harm contrary to s. 267(b) of the Criminal Code. would, therefore, dismiss the appeal. “Caldwell J.A.” Caldwell J.A.
HELD: The majority of the court granted leave to appeal and restored the conviction entered by the trial judge. The parties and court agreed that the provisions of s. 34(1) as they read prior to May 2012 were applicable. The issues were determined as follows: 1) the appeal court judge erred by misunderstanding the applicable test and inappropriately focusing on the respondent’s belief. The appeal court judge reviewed cases that led him to focus on the doctrine of mistake of fact, which was not argued by the respondent at trial and were not part of his grounds of appeal; 2) the trial judge accepted some but not all of the expert’s evidence, as he was entitled to do. The trial judge also reinterpreted the video evidence, which was found to be an error by the Court of Appeal. The trial judge considered the factors without weighing the use of force to a nicety. He was determining the objective reasonableness of the force based on the factors; and 3) the appeal court judge properly instructed himself on the standard of review but failed to analyze the decision of the trial judge based on that standard, namely, whether the evidence was reasonably capable of supporting the trial judge’s conclusion based on the evidence as a whole. The dissenting judge would have granted leave to appeal but then would have dismissed the appeal. The dissenting judge of the Court of Appeal found that the appeal court judge erred in his approach but reached the right conclusion that the trial judge erred. The trial judge ignored the fact that the encounter was only three seconds long and he mischaracterized the thrust-kick as extreme force. The respondent had to react quickly. The trial judge also erred in questioning whether the respondent honestly believed he was in danger of harm.