R. v. Power (R.K.),

• Jurisdiction: Saskatchewan
• Judge: Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Citation: 2016 SKCA 29,(2016), 476 Sask.R. 91 (CA)
• Date: 07 March 2016

R. v. Power (R.K.) (2016), 476 Sask.R. 91 (CA);

    666 W.A.C. 91

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. MR.015

Her Majesty the Queen (appellant) v. Robert Kenneth Power (respondent)

(CACR2532; 2016 SKCA 29)

Indexed As: R. v. Power (R.K.)

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.

March 7, 2016.

Summary:

The accused police officer was charged with assaulting Stonechild. He pleaded self- defence under s. 34(1) of the Criminal Code.

The Saskatchewan Provincial Court, in a decision reported at (2014), 436 Sask.R. 236, convicted the accused. The accused appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 455 Sask.R. 92, allowed the appeal and entered a verdict of not guilty. The Crown sought leave to appeal and appealed.

The Saskatchewan Court of Appeal, granted leave to appeal, allowed the appeal and reinstated the conviction. Caldwell, J.A., dissenting, agreed that leave to appeal should be granted, but would have dismissed the appeal.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - The Saskatchewan Court of Appeal held that the amendments to s. 34(1) of the Criminal Code (self-defence provision) made effective after March 2013 were prospective in effect - See paragraphs 26 and 82.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - The Saskatchewan Court of Appeal stated that "... a determination of whether force is reasonable in all the circumstances involves a consideration of three factors. First, a 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, a 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." - See paragraph 35.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - The accused police officer (Power) was convicted of assaulting Stonechild - The trial judge rejected his plea of self-defence under s. 34(1) of the Criminal Code - The accused appealed - The summary conviction appeal judge allowed the appeal - The Crown appealed - The Saskatchewan Court of Appeal allowed the appeal - The court held, inter alia, that "... 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 a 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. 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." - See paragraphs 41 and 42.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - Constable Power was convicted of assaulting Stonechild - The trial judge rejected his plea of self-defence under s. 34(1) of the Criminal Code - Power appealed - The summary conviction appeal court judge entered a verdict of not guilty - He held, inter alia, that the trial judge erred in disregarding the evidence of Johnston, who had been qualified as an expert permitted to give opinion evidence "on the use of force by police officers and in the training of peace officers in the use of force." - The Crown appealed - The Saskatchewan Court of Appeal restored the conviction - The court held, inter alia, that the appeal court judge erred in finding that the trial judge disregarded Johnston's evidence - "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 a matter of law and the trial judge quite properly disregarded his opinion on that point which was the ultimate issue he had to decide." - The court held that the trial judge made no error in dealing with Johnston's evidence - See paragraphs 43 and 44.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - Constable Power was convicted of assaulting Stonechild - The conviction was overturned on appeal - The Crown appealed - The Saskatchewan Court of Appeal restored the conviction - The court stated that "... for both ss. 25(1) and 34(1), the force used by a police officer or a 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 a nicety' when considering the question of proportionality. The law provides for a flexible or tolerant approach to the objective measure of whether force is proportionate ... Constable Power should have been able to counteract Mr. Stonechild, whose capabilities he knew well, with any one of a number of options requiring less force based on the use of force continuum or model for which he had received training. ... 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 a perceived threat. These factors are at the core of determining the amount of force to be used. ... 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 a nicety. ... [T]he 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." - See paragraphs 33 and 50 to 54.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - The Saskatchewan Court of Appeal rejected the notion that a police officer was "required to put up his arms or use any other part of his body to block a blow as a less forceful option when defending himself or herself." - The court stated that "... a 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." - See paragraph 55.

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - A police officer (Power) push-kicked Stonechild as Stonechild approached him - Stonechild, a homeless man, was a chronic alcoholic who habitually consumed hairspray, hand sanitizer or rubbing alcohol - He was in extremely poor physical condition, blind in one eye and weighed no more than 120 to 140 pounds - He was also cognitively impaired - Power was 6'1" in height, weighed approximately 215 pounds and was in good physical condition - Power was charged with assault - Power pleaded self-defence under s. 34(1) of the Criminal Code - The trial judge convicted Power, holding that the force used was not reasonable (proportionate) - Power appealed - In entering an acquittal, the summary conviction appeal court judge considered, inter alia: a. the history between the parties, including Power's knowledge that Stonechild suffered from Hepatitis C and was HIV positive; b. the limited time the accused had to react once he apprehended Stonechild's attack; c. the potential harm the accused faced if he was struck or spit upon; d. the training the accused received; and e. the fact that the force used was in keeping with the training provided to police officers - The Saskatchewan Court of Appeal restored the conviction - The question was whether, from the perspective of a reasonable person in Power's circumstances, it was necessary for Power to effect an arrest of Stonechild or defend himself from Stonechild's advance using the push-kick assuming that Stonechild was advancing with a clenched hand or fist - The trial judge's decision as to whether more force than necessary was used, based on the evidence as a whole, was entitled to deference absent palpable and overriding error - The appeal court judge properly instructed himself on the standard of review but failed to analyze the trial judge's decision based on that standard - He wrongly substituted his own view of the evidence for that of the trial judge - The court held that the trial judge made no error in considering the factors that he did - The trial judge's decision was supportable notwithstanding the additional factors listed by the appeal court judge - The following factors disclosed on the record were also germane to proportionality: (a) Stonechild was substantially intoxicated and Power observed that he was unsteady on his feet; (b) Stonechild verbally challenged Power to a fight; (c) Stonechild approached Power quickly with fists clenched; (d) Power was still in the process of putting on his gloves when Stonechild approached him and had only a second or two to react; (e) Power reacted with a manoeuver that was in accordance with his training; and (f) Power was in the process of effecting a lawful arrest of Stonechild - See paragraphs 56 to 63.

Criminal Law - Topic 4859

Appeals - Indictable offences - Grounds of appeal - Question of fact or question of mixed law and fact - The accused police officer was charged with assault - He pleaded self- defence under s. 34(1) of the Criminal Code - The trial judge convicted the accused - There was a videotape of the events - On appeal, the accused and the Crown disagreed on the extent to which the appeal court could review the trial judge's findings insofar as it was based on the events depicted in the videotape - The accused submitted that, because the videotape was the principal piece of evidence in a case where the facts were not in any serious dispute, the appeal court was in as good a position as the trial judge to assess the significance of the events depicted in the video - The Crown contended that the trial judge's assessment of the video evidence was entitled to the same deference as if the assessment were based on viva voce testimony of witnesses describing the relevant events - On further appeal, the Saskatchewan Court of Appeal stated that "... 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." - See paragraphs 45 to 49.

Counsel:

W. Dean Sinclair, Q.C., for the appellant;

Aaron A. Fox, Q.C., and Matt Schmeling, for the respondent.

This application for leave to appeal and appeal were heard on September 16, 2015, by Ottenbreit, Caldwell and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal.

The Court of Appeal delivered the following decision on March 7, 2016, which was comprised of the following opinions:

Ottenbreit, J.A. (Ryan-Froslie, J.A., concurring) - see paragraphs 1 to 64;

Caldwell, J.A., dissenting - see paragraphs 65 to 98.