S.C.C. No. 35327
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA)
BETWEEN:
PERCY WALTER DAVIS
Appellant
(Appellant)
- and HER MAJESTY THE QUEEN
Respondent
(Respondent)
FACTUM
OF THE APPELLANT, PERCY WALTER DAVIS
(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
______________________________________________________________________
Royal Teskey
Barristers
Suite 200, 9636-102A Avenue
EDMONTON, AB T5H OG5
Sack Goldblatt Mitchell LLP
Barristers & Solicitors
500 30 Metcalfe Street
OTTAWA, ON K1P 5L4
Peter J. Royal, Q.C.
Tel: (780) 432-0919
Fax: (780) 439-6562
Email: proyal@royalteskey.com
Raija Pulkkinen
Tel: (613) 482-2455
Fax: (613) 235-3041
Email: rpulkkinen@sgmlaw.com
Counsel for the Applicant
Ottawa Agent for the Applicant
Alberta Justice
Appeals Branch
3r Floor, 9833-109 Street
EDMONTON, AB T5K 2E8
Gowling Lafleur Henderson LLP
Barristers & Solicitors
2600, 160 Elgin Street
OTTAWA, ON K1P 1C3
Troy L. Couillard
Tel: (780) 422-5402
Fax: (780) 422-1106
Email: troy.couillard@gov.ab.ca
Henry S. Brown, Q.C.
Tel: (613) 233-1781
Fax: (613) 563-9869
Email: henry.brown@gowlings.com
Counsel for the Respondent
Ottawa Agent for the Respondent
INDEX
Page No.
PART I – STATEMENT OF FACTS……………………………………………………..……1
Decision of the Learned Trial Judge…………………………………………….………...3
Decision of the Alberta Court of Appeal……………………………………….…………4
Memorandum of Judgment of the Honourable
Mr. Justice O’Brien and Mr. Justice McDonald……………………………….………….4
Memorandum of Judgment of the Honourable Chief Justice Fraser
(Dissenting)………………………………………………………………………………..5
PART II – QUESTIONS IN ISSUE…………………………………………………………….7
Did the Majority in the Court of Appeal err in not ordering a new trial
after finding that the learned Trial Judge erred?..................................................................7
Position of the Appellant………………………………………………………………….7
PART III – STATEMENT OF ARGUMENT…………………………………………...…….8
Did the Majority in the Court of Appeal err in not ordering a new trial
after finding that the learned Trial Judge erred?..................................................................8
Position of the Appellant………………………………………………………………….8
PART IV – SUBMISSIONS CONCERNING COSTS……………………………………..14
PART V – ORDER SOUGHT………………………………………………………………..15
PART VI – TABLE OF AUTHORITIES……………………………………………………16
PART VII – STATUTES………………………………………………………………….…...17
S.C.C. No. 35327
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA)
BETWEEN:
PERCY WALTER DAVIS
Appellant
(Appellant)
- and -
HER MAJESTY THE QUEEN
Respondent
(Respondent)
FACTUM OF THE APPELLANT,
PERCY WALTER DAVIS
PART I - STATEMENT OF FACTS
1.
The Appellant, Percy Walter Davis, was charged with possession of a weapon, to
wit: a knife, for a dangerous purpose, assaulting a police officer, and assault with a weapon,
arising out of events which took place on August 8, 2008. The trial proceeded between February
28, 2011 and March 9, 2011 in the Court of Queen’s Bench of Alberta before the Honourable
Justice Crighton, sitting without a jury.
2.
The facts of what occurred on August 8, 2008 were strongly contested at trial,
which included the evidence of 24 different witnesses, some of whom provided versions of
events which directly contradicted others. However, the Learned Trial Judge made findings of
fact and those findings are not contested for the purposes of this appeal, and are briefly
described as follows.
2
3.
Cst. Myles Stromner arrived at a shopping mall parking lot in Edmonton, Alberta,
on August 8, 2008, in response to a call about a youth riding around the parking lot area on a
bicycle while in possession of a butcher knife. He spoke to two individuals in the parking lot and
was about to give up when he saw the Appellant, who matched the description provided by his
dispatcher, by some nearby dumpsters. Upon seeing the Appellant, Cst. Stromner sounded his
air-horn twice and activated his emergency lights. Before he could exit the vehicle, the Appellant
“charged” the driver’s side, causing Cst. Stromner to lean over to the passenger side and cover
his head. He then unlatched his door, unbuckled his seatbelt, and removed his pistol from the
holster. As he attempted to open the car door, he felt resistance which eventually gave way and
he was able to open the door. At this point, Cst. Stromner told the Appellant to back up and drop
the knife. He also got out of his police cruiser and declared a 10-13 over the radio, meaning
officer in distress – needs assistance immediately.
4.
At this point, the Appellant picked up his bicycle and walked away. Cst. Stromner
followed, all the while giving verbal direction for the Appellant to drop the knife. At some point,
the Appellant turned toward Cst. Stromner and the officer emptied his OC spray (commonly
referred to as pepper spray) into the Appellant’s face. This appeared to have no effect and the
Appellant continued to back up or walk away. At this point, Cst. Stromner downgraded the threat
level to a 10-17, officer needs assistance, but not as urgently as with a 10-13. As Cst. Stromner
continued to advance, the Appellant continued to move away from him. The Appellant crossed
the road in the direction of the shopping mall parking lot, continuing to either walk away or back
away from Cst. Stromner. He was heading in the direction of the back of the mall where a
McDonald’s was located. It is unclear how close the Appellant came to the populated area of the
parking lot, but at some point, he turned to face Cst. Stromner and the officer shot him twice,
once in the neck and once in the chest. The shots created serious injuries to the Appellant and he
was required to be taken to hospital and have surgery performed. At the time of trial, he was still
suffering some effects from these injuries (Appellant’s Record, Volume IV, Tab 10, pg.
196).
3
Decision of the Learned Trial Judge
5.
The Learned Trial Judge canvassed first the evidence of the key witnesses, at
times referencing her impressions of their credibility and reliability. She then turned to an
analysis of the elements of each of the offences, finding that the Crown had proven each of these
elements beyond a reasonable doubt. She made findings of guilt on each of the offences. Finally,
she addressed the Appellant’s Charter Application and whether or not convictions ought to be
entered or the charges ought to be stayed, the only matter which is the subject of the within
appeal.
6.
The Appellant had raised many allegations of breaches of his Charter rights:
unlawful detention; failure to advise of the reasons for detention; failure to advise of the right to
counsel; negligent investigation; cruel and unusual treatment; and violations of his right to life,
liberty, and security of the person. The Learned Trial Judge summarily dismissed the allegations
that the Appellant was unlawfully detained, not provided the reason for his detention, and not
provided with his right to counsel, finding that he was not detained until the point when Cst.
Stromner began to pursue him, at which point it ought to have been very clear to the Appellant
the basis for the investigation. She then turned to an analysis of whether or not Cst. Stromner’s
use of deadly force upon the Appellant was justified in the circumstances. Unfortunately, very
early in her analysis she fell into error.
7.
Before embarking on a consideration of whether or not the force used was
justified in the circumstances, the Learned Trial Judge stated, “[The Appellant] submits the
Crown bears the onus of proof to negate each of the factors in s. 25 beyond a reasonable doubt. I
disagree” (Appellant’s Record, Volume IV, Tab 10, pg. 187). She then went on to consider
whether or not the Appellant had proved the negative, namely that Cst. Stromner did not
reasonably believe that force was necessary to preserve himself or others from death or
grievous bodily harm and that he could not have prevented Mr. Davis’s flight by
reasonable means less violent. She found that the Appellant had not established this on a balance
of probabilities and dismissed his application.
4
Decision of the Alberta Court of Appeal
8.
The Appellant appealed all of his convictions to the Alberta Court of Appeal. The
three grounds of appeal advanced were that:
A.
The learned trial judge erred in failing to give sufficient reasons;
B.
The learned trial judge erred in her analysis of the mens rea of count
1, possessing a weapon, to wit: a knife for a purpose dangerous to the
public peace; and
C.
The learned trial judge erred in her analysis of whether or not the
appellant’s Charter rights were breached.
A hearing was held before Chief Justice Fraser and Justices O’Brien and McDonald on October
4, 2012. At the oral hearing, Ground B was abandoned and the hearing proceeded only on
Grounds A and C. Reasons for Judgment, consisting of the Memorandum of Justices O’Brien
and McDonald and the Memorandum of Chief Justice Fraser were filed on January 24, 2013.
The majority judgment of Justices O’Brien and McDonald upheld the Appellant’s convictions
while Chief Justice Fraser would have allowed the appeal and ordered a new trial.
Memorandum of Judgment of the Honourable Mr. Justice O’Brien and Mr. Justice McDonald
9.
Justices O’Brien and McDonald dealt with each of the grounds of appeal pursued
at the hearing. They found that the first Ground had not been established as the Learned Trial
Judge’s reasons for deciding as she did were apparent from the record and suitable for appellate
review (R. v. Davis, 2013 ABCA 15 (TAB 2) at paras. 34 – 40). With respect to Ground C,
referred to in the Reasons for Judgment as Ground Two, the majority found that the Learned
Trial Judge had erred in assigning the burden of proof on the allegation that excessive force was
used (Davis, supra (TAB 2) at para. 43).
10.
The Majority then went further to consider whether or not this error would have
affected the Learned Trial Judge’s analysis. Referring to the fact that the Crown did not rely
upon the failure of the Appellant to call evidence, they held that the Learned Trial Judge’s
5
analysis would have been the same notwithstanding this error (Davis, supra (TAB 2) at para.
48). The Learned Justices found that, in spite of her failure to articulate it, the Learned Trial
Judge had considered not only Cst. Stromner’s subjective belief, but also whether that belief was
objectively reasonable (Davis, supra (TAB 2) at para. 55). The Majority judgment dismissed the
Appellant’s appeal on this basis.
Memorandum of Judgment of the Honourable Chief Justice Fraser
(Dissenting)
11.
Chief Justice Fraser agreed with Justices O’Brien and McDonald that the Learned
Trial Judge had erred in her application of the burden of proof on the Appellant’s Charter
application. In considering the effect of this error, however, she found that the Learned Trial
Judge’s whole analysis was tainted by the error and that the result would not necessarily have
been the same had she properly assigned the burden (Davis, supra (TAB 2) at para. 61).
12.
Unlike the majority, the dissenting judgment canvasses the bases upon which an
appellate court can dismiss an appeal after an error of law has been established. Chief Justice
Fraser held that section 686(1)(b)(iv) was inapplicable, as it cannot be said that there was no
prejudice to the Appellant. Clearly, if the Learned Trial Judge misapplied the burden of proof,
there was a detrimental impact on the Appellant, as he ran the risk of failing to meet a burden
improperly applied to him. The Chief Justice also found that section 686(1)(b)(iii) would not
allow the verdicts to stand since this was not a harmless error. It clearly may have impacted upon
the Learned Trial Judge’s entering of convictions, as a positive finding on the Charter
application could have resulted in a stay of proceedings. Her Ladyship found that the only basis
upon which the majority could have upheld the convictions was if the Crown had established that
there was no reasonable prospect that the verdict would have been different.
13.
The Chief Justice’s judgment finding that the Learned Trial Judge’s decision on
the Charter application was not inevitable carefully outlined what the Appellant was required to
show on the application. It correctly canvassed the case law relating to use of force and section 7
of the Charter and some case law on the application of section 25 of the Criminal Code. It also
6
further clarified the practical reasoning behind the shifting evidentiary burden on this type of
Charter application stating:
The test as to whether the use of deadly force was justified requires a
combined subjective - objective analysis: Nasogaluak, supra at para
34; also see R v Storrey, [1990] 1 SCR 241. The trier of fact must
conclude not only that the police officer subjectively believed that the
use of force was necessary in all of the circumstances to protect the
police officer or others from death or grievous bodily harm, but also
that this belief was objectively reasonable.
[79]
This being so, it would be unfair to impose on an accused
the burden of proving a negative, namely that the deadly force was not
justified. Evidence of the subjective belief of the police officer falls
squarely within the exclusive knowledge of the police officer and
similarly, evidence as to what was considered reasonably necessary in
the circumstances from an objective viewpoint may well be linked to
police practices and procedures. This evidence is not within either the
ready knowledge or control of an accused.
(R. v. Davis, supra (TAB 2) at para. 78-79)
It then provided an analysis of why she could not be satisfied that the verdict would necessarily
have been the same in this case.
7
PART II – QUESTIONS IN ISSUE
A.
DID THE MAJORITY IN THE COURT OF APPEAL ERR
IN NOT ORDERING A NEW TRIAL AFTER FINDING
THAT THE LEARNED TRIAL JUDGE ERRED?
Position of the Appellant
It is the Appellant’s respectful submission that the Learned Trial Judge erred in
the manner found by all members of the Court of Appeal. In addition, the Appellant submits that
this error tainted her analysis of whether or not the Appellant’s Charter rights were infringed. As
such, the Appellant submits that the majority of the Court of Appeal erred in upholding the
decision of the Learned Trial Judge in spite of her error.
8
PART III – STATEMENT OF ARGUMENT
A.
DID THE MAJORITY IN THE COURT OF APPEAL ERR
IN NOT ORDERING A NEW TRIAL AFTER FINDING
THAT THE LEARNED TRIAL JUDGE ERRED?
Position of the Appellant
It is the Appellant’s respectful submission that the Learned Trial Judge erred in
the manner found by all members of the Court of Appeal. In addition, the Appellant submits that
this error tainted her analysis of whether or not the Appellant’s Charter rights were infringed. As
such, the Appellant submits that the majority of the Court of Appeal erred in upholding the
decision of the Learned Trial Judge in spite of her error.
14.
As was stated above, the majority of the Court of Appeal decided that the trial
judge’s error in assigning the burden of proof on the Charter application did not affect the
integrity of her analysis. Though not canvassed by the majority, it would appear that the
authority for upholding the convictions was derived from section 686(1)(b)(iii) which reads:
On the hearing of an appeal against a conviction or against a verdict
that the appellant is unfit to stand trial or not criminally responsible on
account of mental disorder, the court of appeal…
(b) may dismiss the appeal where…
(iii) notwithstanding that the court is of the opinion that on any
ground mentioned in subparagraph (a)(ii) the appeal might be decided
in favour of the appellant, it is of the opinion that no substantial wrong
or miscarriage of justice has occurred
This section can be used to uphold verdicts where there has been an error of law, but the
evidence against the accused was so overwhelming that no other verdict could reasonably have
been reached. In such a case, the Respondent Crown who seeks to have the verdict upheld bears
the onus of establishing that there is no reasonable prospect that the verdict would have been
different, absent the error (R. v. Khan, 2001 SCC 86 (TAB 4) at para. 31). As this was not a case
where the factual guilt of the Appellant was relevant to the appeal, what needed to be considered
by the Court of Appeal was whether, absent the Learned Trial Judge’s misapplication of the
9
burden of proof, she would have arrived at the same conclusion on the Charter application. This
clause has been interpreted restrictively by this Honourable Court, requiring the Crown to prove
that there is no reasonable possibility that, absent the legal error, the verdict would have been
different (R. v. Bevan (1993), 82 C.C.C. (3d) 310 (TAB 1) at p. 328). The majority found that
they could be so satisfied, while Chief Justice Fraser could not be satisfied that was the case.
15.
In the Appellant’s respectful submission, the majority of the Court of Appeal
erred in finding that the verdict could not have been different. The Learned Trial Judge’s analysis
of the Appellant’s Charter application began with a discussion of where the burden of proof lay.
It was clearly fundamental to her decision. The Learned Trial Judge pointed out that Cst.
Stromner admitted to shooting the Appellant. She then immediately turned to the Appellant’s
argument that, force having been established, the Crown was now required to establish that the
force used was lawful. She incorrectly rejected this argument, finding instead that the Appellant
was required to establish, on a balance of probabilities, that the police’s use of force had been
unlawful.
16.
As the Chief Justice astutely noted in her dissenting opinion, an error in assigning
the burden of proof can taint the entirety of a trial judge’s analysis. In cases which fall close to
the line, for example, there is a likelihood that the person who bears the burden of proof will be
unsuccessful. In other words, if the trial judge is having difficulty determining what actually
occurred, she is more likely to find that the person bearing the burden has failed to meet it. In
such cases, when the trial judge is assessing all of the circumstances, the burden of proof
becomes very important. In addition, as the Learned Chief Justice pointed out, an error in
assigning the burden of proof can change a trial judge’s assessment of th import of certain
evidence.
17.
In the Appellant’s respectful submission, there is a significant possibility that such
a problem befell the Appellant in this case. Certainly, this was a case which was close to the line.
The force used was deadly and exerted in a unique situation. Obviously, the Learned Trial Judge
struggled with whether or not the force here was justifiable. In the end, her decision seems to
have turned on whether or not Cst. Stromner was required to issue a warning before shooting
10
(Appellant’s Record, Volume IV, Tab 10, pg. 190). To say that, had she properly assigned
the burden of proof her decision would have been the same, is speculative.
18.
In addition, and as a result of her misallocation of the burden of proof, the
Learned Trial Judge in this case never turned her mind to whether or not Cst. Stromner’s
subjective belief that he needed to shoot the Appellant to protect members of the public was
objectively reasonable. The majority of the Court of Appeal found that this was adequately
assessed by the Learned Trial Judge’s examination of whether or not Cst. Stromner could have
used other means to prevent the Appellant’s entry into an area where the public might be
threatened (R. v. Davis, supra (TAB 2) at para. 51). With the greatest of respect, the Appellant
disagrees that these references in the Learned Trial Judge’s reasons can be considered an
assessment of the objective reasonableness of Cst. Stromner’s belief. In actuality, these
references were exactly what the Learned Trial Judge said they were, a confirmation of the
officer’s subjective belief that he did not have any alternative but to shoot the Appellant. They
were not a consideration of whether or not that belief was reasonable (Appellant’s Record,
Volume IV, Tab 10, pg. 189). In the Appellant’s respectful submission, had the
Learned Trial Judge turned to an objective analysis of the amount of force used, she would
have outlined her basis for deciding against the Appellant in her reasons. She did not do so,
and to attempt to infer what her reasoning would have been is speculative and involved the
majority at the Court of Appeal stepping into a realm properly left to the trial judge.
19.
A true objective assessment of the officer’s belief would have involved testing his
belief about the proximity of the Appellant to other people, the speed with which the Appellant
was progressing toward other people, the danger which the Appellant actually posed and whether
there were any reasonable alternatives to the force used. Unfortunately, the Learned Trial Judge
never entered into such an analysis. In the Appellant’s respectful submission, this could not be
more clear than when one looks to the Learned Trial Judge’s discussion of the Appellant’s
suggested alternatives to the use of force. Instead of analysing whether those suggestions
impacted upon whether or not Cst. Stromner’s subjective belief was objectively reasonable, the
Learned Trial Judge indicated that these alternatives were never put to Cst. Stromner and as such
11
he had no opportunity to respond to them (Appellant’s Record, Volume IV, Tab 10, pg.
191).
20.
As stated above, a proper analysis of the Appellant’s Charter Application required
the Learned Trial Judge to consider the objective reasonableness of each of the factors in section
25:
25. (1) Every one who is required or authorized by law to do anything
in the administration or enforcement of the law
…
(b) as a 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.
…
(3) Subject to subsections (4) and (5), a person is not justified for the
purposes of subsection (1) in using force that is intended or is likely to
cause death or grievous bodily harm unless the person believes on
reasonable grounds that it is necessary for the self-preservation of the
person or the preservation of any one under that person’s protection
from death or grievous bodily harm.
(4) A peace officer, and every person lawfully assisting the peace
officer, is justified in using force that is intended or is likely to cause
death or grievous bodily harm to a person to be arrested, if
(a) the peace officer is proceeding lawfully to arrest, with or without
warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for
which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on
reasonable grounds that the force is necessary for the purpose of
protecting the peace officer, the person lawfully assisting the peace
officer or any other person from imminent or future death or grievous
bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less
violent manner.
When assessing the standard of objective reasonableness, the police are not to be held to a
standard of perfection. They must often act in volatile and emergent situations, and their
decisions should not be criticized with the benefit of hindsight, but should be assessed in light of
the information that they had at the time (R. v. Nasogaluak, 2010 SCC 6 (TAB 5) at para. 35).
12
However, they cannot similarly be given carte blanche to act without repercussions. As this
Honourable Court said in R. v. Genest,
The greater the departure from the standards of behaviour required by
the common law and the Charter, the heavier the onus on the police to
show why they thought it necessary to use force in the process of an
arrest or a search. The evidence to justify such behaviour must be
apparent in the record, and must have been available to the police at
the time they chose their course of conduct
(R. v. Genest (1989), 45 C.C.C. (3d) 385 (TAB 3) at p. 408)
21.
It is important to remember that in this case, Cst. Stromner did not believe that he
was justified in acting because the Appellant was presently causing any danger to persons, but
because he was moving toward a populated area, and if he arrived there, he would likely be a
danger and the officer would have less means available to him at that time to interfere (i.e. he
would not have been able to discharge his firearm into a crowd):
“I also accept Constable Stromner’s evidence that he did not know
when help would arrive. He was focused on Mr. Davis and the knife
he was holding as well as his own efforts to disarm Mr. Davis”
(Appellant’s Record, Volume IV, Tab 10, pg. 188)
“He called for a CED and cars to come immediately, and Mr. Davis
continued to move closer to what Stromner described as a populated
area. I accept his evidence that he believed he would not be able to
take action once Mr. Davis entered that area where he had seen people
minutes earlier and that he feared for their safety”
(Appellant’s Record, Volume IV, Tab 10, pg. 188)
These passages show that the Learned Trial Judge was prepared to accept the officer at his word
about what he felt were the circumstances.
22.
With the greatest of respect to the majority at the Court of Appeal, none of the
Learned Trial Judge’s analysis shows an objective assessment of whether or not Cst. Stromner’s
beliefs were reasonable. In a case such as this, where the force used was “pre-emptive”, as the
Appellant was moving toward becoming a danger, it was even more important for the Learned
13
Trial Judge to make a determination that deadly force was the only reasonable alternative. It is
important to remember that what the Crown must show to establish that deadly force was
reasonable is that “it is necessary for the self-preservation of the person or the preservation of
any one under that person’s protection from death or grievous bodily harm.”
23.
The majority appears to have placed some reliance on the fact that the Crown did
not fault the Appellant for not calling evidence in deciding that it would not have mattered where
the burden of proof rested. With the greatest of respect, the Appellant fails to see how this is
relevant. As Chief Justice Fraser keenly observed, it may be the case that an accused has no need
to call evidence on this type of application, especially where the matters at issue are within the
knowledge of the police:
Evidence of the subjective belief of the police officer falls squarely
within the exclusive knowledge of the police officer and similarly,
evidence as to what was considered reasonably necessary in the
circumstances from an objective viewpoint may well be linked to
police practices and procedures. This evidence is not within either the
ready knowledge or control of an accused.
(R. v. Davis, supra (TAB 2) at para. 78-79)
Given that this was a case where the entirety of the facts was delivered through Crown witnesses,
there was no necessity of the Appellant leading evidence. As such, the fact that the Crown did
not rely on the Appellant’s failure to call evidence is neither surprising nor consequential.
14
PART IV – SUBMISSIONS CONCERNING COSTS
24.
The Applicant is not requesting any costs, and accordingly there are no
submissions concerning costs.
15
PART V- ORDER SOUGHT
25.
For the reasons aforesaid, it is respectfully submitted that the appeal ought to be
allowed and a new trial ordered.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this Jlfkday of July, 2013.
ROYAL TESKEY
Per:
- =- t~(js!. ,._ o..:..__!2--______
Peter J. Royal, Q.C.
Counsel for the Appellant
16
PART VI – TABLE OF AUTHORITIES
Authority
Para Ref.
1.
R. v. Bevan, [1993] 2 S.C.R. 393
14
2.
R. v. Davis, 2013 ABCA 15
3.
R. v. Genest (1989), 45 C.C.C. (3d) 385
19
4.
R. v. Khan, 2001 SCC 86
14
5.
R. v. Nasogaluak, 2010 SCC 6
19
9,10,11,13,17,22
17
PART VII – STATUTES
Criminal Code (R.S.C., 1985, c. C-46)
Code criminel (L.R.C. (1985), ch. C-46)
25. (1) Every one who is required or
authorized by law to do anything in the
administration or enforcement of the law
25. (1) Quiconque est, par la loi, obligé ou
autorisé à faire quoi que ce soit dans
l’application ou l’exécution de la loi :
(a) as a private person,
a) soit à titre de particulier;
(b) as a peace officer or public officer,
b) soit à titre d’agent de la paix ou de
fonctionnaire public;
(c) in aid of a peace officer or public officer,
or
c) soit pour venir en aide à un agent de la paix
ou à un fonctionnaire public;
(d) by virtue of his office,
d) soit en raison de ses fonctions,
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.
(2) Where a person is required or authorized
by law to execute a process or to carry out a
sentence, that person or any person who
assists him is, if that person acts in good
faith, justified in executing the process or in
carrying out the sentence notwithstanding
that the process or sentence is defective or
that it was issued or imposed without
jurisdiction or in excess of jurisdiction.
(3) Subject to subsections (4) and (5), a
person is not justified for the purposes of
subsection (1) in using force that is intended
or is likely to cause death or grievous bodily
harm unless the person believes on
reasonable grounds that it is necessary for
the self-preservation of the person or the
preservation of any one under that person’s
protection from death or grievous bodily
harm.
est, s’il agit en s’appuyant sur des motifs
raisonnables, fondé à accomplir ce qu’il lui est
enjoint ou permis de faire et fondé à employer
la force nécessaire pour cette fin.
(2) Lorsqu’une personne est, par la loi,
obligée ou autorisée à exécuter un acte
judiciaire ou une sentence, cette personne ou
toute personne qui l’assiste est, si elle agit de
bonne foi, fondée à exécuter l’acte judiciaire
ou la sentence, même si ceux-ci sont
défectueux ou ont été délivrés sans juridiction
ou au-delà de la juridiction.
(3) Sous réserve des paragraphes (4) et (5),
une personne n’est pas justifiée, pour
l’application du paragraphe (1), d’employer la
force avec l’intention de causer, ou de nature
à causer la mort ou des lésions corporelles
graves, à moins qu’elle n’estime, pour des
motifs raisonnables, que cette force est
nécessaire afin de se protéger elle-même ou
de protéger toute autre personne sous sa
protection, contre la mort ou contre des
lésions corporelles graves.
18
(4) A peace officer, and every person
lawfully assisting the peace officer, is
justified in using force that is intended or is
likely to cause death or grievous bodily
harm to a person to be arrested, if
(a) the peace officer is proceeding lawfully
to arrest, with or without warrant, the person
to be arrested;
(b) the offence for which the person is to be
arrested is one for which that person may be
arrested without warrant;
(c) the person to be arrested takes flight to
avoid arrest;
(d) the peace officer or other person using
the force believes on reasonable grounds
that the force is necessary for the purpose of
protecting the peace officer, the person
lawfully assisting the peace officer or any
other person from imminent or future death
or grievous bodily harm; and
(4) L’agent de la paix, ainsi que toute
personne qui l’aide légalement, est fondé à
employer contre une personne à arrêter une
force qui est soit susceptible de causer la mort
de celle-ci ou des lésions corporelles graves,
soit employée dans l’intention de les causer, si
les conditions suivantes sont réunies :
a) il procède légalement à l’arrestation avec
ou sans mandat;
b) il s’agit d’une infraction pour laquelle cette
personne peut être arrêtée sans mandat;
c) cette personne s’enfuit afin d’éviter
l’arrestation;
d) lui-même ou la personne qui emploie la
force estiment, pour des motifs raisonnables,
cette force nécessaire pour leur propre
protection ou celle de toute autre personne
contre la mort ou des lésions corporelles
graves — imminentes ou futures;
e) la fuite ne peut être empêchée par des
moyens raisonnables d’une façon moins
violente.
(e) the flight cannot be prevented by
reasonable means in a less violent manner.
(5) A peace officer is justified in using force
that is intended or is likely to cause death or
grievous bodily harm against an inmate who
is escaping from a penitentiary within the
meaning of subsection 2(1) of the
Corrections and Conditional Release Act, if
(a) the peace officer believes on reasonable
grounds that any of the inmates of the
penitentiary poses a threat of death or
grievous bodily harm to the peace officer or
any other person; and
(5) L’agent de la paix est fondé à employer
contre un détenu qui tente de s’évader d’un
pénitencier — au sens du paragraphe 2(1) de
la Loi sur le système correctionnel et la mise
en liberté sous condition — une force qui est
soit susceptible de causer la mort de celui-ci
ou des lésions corporelles graves, soit
employée dans l’intention de les causer, si les
conditions suivantes sont réunies :
a) il estime, pour des motifs raisonnables, que
ce détenu ou tout autre détenu représente une
menace de mort ou de lésions corporelles
graves pour lui-même ou toute autre personne;
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(b) the escape cannot be prevented by
reasonable means in a less violent manner.
b) l’évasion ne peut être empêchée par des
moyens raisonnables d’une façon moins
violente.
686. (1) On the hearing of an appeal against
a conviction or against a verdict that the
appellant is unfit to stand trial or not
criminally responsible on account of mental
disorder, the court of appeal
686. (1) Lors de l’audition d’un appel d’une
déclaration de culpabilité ou d’un verdict
d’inaptitude à subir son procès ou de nonresponsabilité criminelle pour cause de
troubles mentaux, la cour d’appel :
(a) may allow the appeal where it is of the
opinion that
a) peut admettre l’appel, si elle est d’avis,
selon le cas :
(i) the verdict should be set aside on the
ground that it is unreasonable or cannot be
supported by the evidence,
(i) que le verdict devrait être rejeté pour le
motif qu’il est déraisonnable ou ne peut pas
s’appuyer sur la preuve,
(ii) the judgment of the trial court should be
set aside on the ground of a wrong decision
on a question of law, or
(ii) que le jugement du tribunal de première
instance devrait être écarté pour le motif qu’il
constitue une décision erronée sur une
question de droit,
(iii) on any ground there was a miscarriage
of justice;
(b) may dismiss the appeal where
(i) the court is of the opinion that the
appellant, although he was not properly
convicted on a count or part of the
indictment, was properly convicted on
another count or part of the indictment,
(ii) the appeal is not decided in favour of the
appellant on any ground mentioned in
paragraph (a),
(iii) notwithstanding that the court is of the
opinion that on any ground mentioned in
subparagraph (a)(ii) the appeal might be
decided in favour of the appellant, it is of the
opinion that no substantial wrong or
miscarriage of justice has occurred, or
(iii) que, pour un motif quelconque, il y a eu
erreur judiciaire;
b) peut rejeter l’appel, dans l’un ou l’autre des
cas suivants :
(i) elle est d’avis que l’appelant, bien qu’il
n’ait pas été régulièrement déclaré coupable
sur un chef d’accusation ou une partie de
l’acte d’accusation, a été régulièrement
déclaré coupable sur un autre chef ou une
autre partie de l’acte d’accusation,
(ii) l’appel n’est pas décidé en faveur de
l’appelant pour l’un des motifs mentionnés à
l’alinéa a),
(iii) bien qu’elle estime que, pour un motif
mentionné au sous-alinéa a)(ii), l’appel
pourrait être décidé en faveur de l’appelant,
elle est d’avis qu’aucun tort important ou
aucune erreur judiciaire grave ne s’est produit,
(iv) nonobstant une irrégularité de procédure
au procès, le tribunal de première instance
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(iv) notwithstanding any procedural
irregularity at trial, the trial court had
jurisdiction over the class of offence of
which the appellant was convicted and the
court of appeal is of the opinion that the
appellant suffered no prejudice thereby;
(c) may refuse to allow the appeal where it
is of the opinion that the trial court arrived at
a wrong conclusion respecting the effect of a
special verdict, may order the conclusion to
be recorded that appears to the court to be
required by the verdict and may pass a
sentence that is warranted in law in
substitution for the sentence passed by the
trial court; or
(d) may set aside a conviction and find the
appellant unfit to stand trial or not
criminally responsible on account of mental
disorder and may exercise any of the powers
of the trial court conferred by or referred to
in section 672.45 in any manner deemed
appropriate to the court of appeal in the
circumstances.
était compétent à l’égard de la catégorie
d’infractions dont fait partie celle dont
l’appelant a été déclaré coupable et elle est
d’avis qu’aucun préjudice n’a été causé à
celui-ci par cette irrégularité;
c) peut refuser d’admettre l’appel lorsqu’elle
est d’avis que le tribunal de première instance
en est venu à une conclusion erronée quant à
l’effet d’un verdict spécial, et elle peut
ordonner l’inscription de la conclusion que lui
semble exiger le verdict et prononcer, en
remplacement de la sentence rendue par le
tribunal de première instance, une sentence
justifiée en droit;
d) peut écarter une déclaration de culpabilité
et déclarer l’appelant inapte à subir son procès
ou non responsable criminellement pour cause
de troubles mentaux et peut exercer les
pouvoirs d’un tribunal de première instance
que l’article 672.45 accorde à celui-ci ou
auxquels il fait renvoi, de la façon qu’elle juge
indiquée dans les circonstances.