R. v. Freake (R.), (1990) 85 Nfld. & P.E.I.R. 25 (NFPC)

• Judge: LeBlanc, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: June 22, 1990
• Jurisdiction: Newfoundland and Labrador
• Citations: (1990), 85 Nfld. & P.E.I.R. 25 (NFPC)

R. v. Freake (R.) (1990), 85 Nfld. & P.E.I.R. 25 (NFPC);

    266 A.P.R. 25

MLB headnote and full text

Her Majesty The Queen v. Ron Freake (defendant)

Indexed As: R. v. Freake (R.)

Newfoundland Provincial Court

LeBlanc, P.C.J.

June 22, 1990.

Summary:

The owner of a vandalized building was charged with assaulting a child during the arrest or detention of the child for alleged break, enter and damage to the property. The accused submitted that his actions were not criminal because he was defending his property and making a lawful arrest.

The Newfoundland Provincial Court convicted the accused.

Criminal Law - Topic 1412

Assaults - Defences - General - The accused discovered several children in his vandalized building - He caught and forced one child onto the floor of his truck and drove him to the police station - He submitted that he was entitled to arrest the child and to act in defence of his property - The Newfoundland Provincial Court dismissed the defence of defence of property where the accused's actions went beyond the use of force necessary to remove a trespasser - See paragraphs 8 and 9.

Criminal Law - Topic 1412

Assaults - Defences - General - The accused discovered several children in his vandalized building - He forced one child into his truck, to lie on the floor, and took him to the police station - He submitted that he was entitled to arrest the child in defence of his property - The Newfoundland Provincial Court held that the arrest was lawful but convicted the accused of assault because he used excessive force - The test was whether a reasonable person reacting to the conduct would have used the amount of force thinking it was necessary - See paragraphs 10 to 19.

Cases Noticed:

R. v. Matson (1970), 1 C.C.C.(2d) 374 (B.C.C.A.), refd to. [para. 9].

R. v. Storrey (1990), 105 N.R. 81; 37 O.A.C. 161; 75 C.R.(3d) 5 (S.C.C.), refd to. [para. 10].

Eccles v. Bourque (1973), 3 N.R. 259; 22 C.R.N.S. 199 (S.C.C.), refd to. [para. 13].

R. v. Roberge (1983), 46 N.R. 573; 33 C.R.(3d) 209, refd to. [para. 14].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 25 [paras. 8, 19]; sect. 25(1) [paras. 13, 16]; sect. 25(4) [paras. 14, 16]; sect. 26 [para. 19]; sect. 34, sect. 41 [para. 9]; sect. 492(2) [para. 10]; sect. 494(1)(a) [para. 10]; sect. 494(1)(b) [para. 11]; sect. 494(3) [para. 12].

Counsel:

D. Chaulk, for the Crown;

A. Miller, for the defence.

This case was heard before LeBlanc, P.C.J., of the Newfoundland Provincial Court, District of Menihek, who delivered the following judgment on June 22, 1990.