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DEFENCES-USE OF FORCE BY A PEACE OFFICER-SECTION 25 CRIMINAL CODE

R. v. LINDSAY, 2023 SCC 33, DECEMBER 14, 2023..

FACTS:  The accused, a peace officer, was convicted of the offence of aggravated assault.  His appeal from conviction was dismissed by the Alberta Court of Appeal, dissenting.  He appealed to the Supreme Court of Canada as of right.

HELD:  The appeal was dismissed.  The Supreme Court issued a brief oral judgment, per Jamal J.:

We are all of the view that the appeal should be dismissed.

We do not accept the appellant’s submission that the trial judge misinterpreted the concession of defence counsel that if an assault occurred, it was an aggravated assault. The appellant did not raise this as a ground of appeal before the Court of Appeal. The appellant now claims that the trial judge interpreted this concession as meaning that he did not need to decide whether the Crown had proved the elements of aggravated assault. We disagree. Reading the judgment as a whole, the trial judge concluded that the appellant committed aggravated assault when he intentionally struck and threw the person in his custody to the ground. As the majority of the Court of Appeal correctly noted, based on the trial judge’s reasons, “the pathway to conviction is clear and based on the correct application of relevant legal principles” (para. 6). A trial judge is presumed to know the law and is entitled to focus on the live issues at trial. In our view, the trial judge’s reasons are sufficient in law (see R. v. G.F., 2021 SCC 20, at para. 74).

Nor do we accept the appellant’s argument that the trial judge erred in concluding that s. 25(1) of the Criminal Code, R.S.C. 1985, c. C-46, did not provide a defence for the appellant’s use of force against the individual. Section 25(1) “essentially provides that a police officer is justified in using force to effect a 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” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34). The matters raised by the dissenting judge in the Court of Appeal in essence impugn the trial judge’s findings of fact. In our view, the trial judge was entitled to find on the evidence before him that the appellant had no reasonable grounds to strike the person initially, and that his use of force in striking him three more times in the head and then throwing him to the ground was unnecessary and excessive on a proper standard. The trial judge’s findings of fact were amply supported by the record. We see no basis for this Court to intervene.