COURT OF APPEAL FOR ONTARIO
Gillese and Lauwers JJ.A., and Speyer J. (ad hoc)
BETWEEN
Her Majesty the Queen
Respondent
and
James Remus
Appellant
Paul Burstein, for the appellant
Chris Dwornikiewicz, for the respondent
Heard: December 17, 2014
On appeal from the Summary Conviction Appeal Court decision dated January 10, 2014, by Justice John F. McCartney of the Superior Court of Justice, dismissing the appeal against convictions entered on May 16, 2013, by Justice Theo Wolder of the Ontario Court of Justice.
ENDORSEMENT
1The appellant was a police officer with the Nishnawabe-Aski Police Service. He arrested the complainant, who was drunk, for breach of the peace.
2The appellant was convicted of one count of assault and one count of assault with a weapon after the trial judge found that the appellant had acted unreasonably and used excessive force when dealing with the complainant.
3The appellant appealed to the summary conviction appeal court. The decision of the Ontario Court of Justice was upheld and his appeal was dismissed. He now seeks leave to appeal to this court.
BACKGROUND IN BRIEF
4The interactions between the appellant and the complainant which led to the convictions were captured on video.
5The appellant gestured to the complainant to enter a cell. The complainant complied but the appellant pulled him back out so that he could be searched before entering the cell. The complainant did not remove his jacket when so instructed because he was cold. When the appellant tried to remove the complainant’s jacket, the complainant pushed or slapped the appellant’s hand away from his jacket zipper. On the findings of the trial judge, the complainant’s move was “very quick”, lasting less than a second. He found that the amount of force used by the complainant was “low, momentary and trifling”, a “mere flick of the hand”.
6Within a further second and a half and without further comment, discussion or warning, the appellant “grounded” the complainant, by “forcefully” throwing him onto the cell block’s concrete floor. The trial judge found the appellant’s conduct to be “severe, disproportionate and excessive” in the context of what had transpired to that point in time.
7After the complainant was thrown to the ground, he lay on the floor on his left side. The appellant tried to force the complainant to lie on his stomach so he could physically place the complainant’s hands behind his back and handcuff him. The complainant did not co-operate. The appellant then threw five punches in rapid succession, with the closed fist of his right hand, at the complainant’s head and face. A majority of the blows struck the complainant, causing injury to his nose. The appellant fractured some bones in his right hand when some of his punches missed the complainant’s head and landed on the concrete floor.
8When the complainant continued, for 17 seconds, to lie on his left side and resist rolling onto his stomach, the appellant pepper sprayed the complainant in the face. He was acquitted of the charge of assault with a weapon laid in relation to the pepper spraying.
9The appellant succeeded in forcing the complainant to roll onto his stomach. However, when the appellant then sat up and did not lie back down after being ordered to, the appellant hit the complainant three times with his baton before handcuffing him.
10At trial, the appellant conceded that he struck the complainant but argued that the force used was required and authorized by law and, therefore, was justified under s. 25(1) of the Criminal Code, R.S.C. 1985, c. C-46. Section 25(1) reads as follows:
- (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
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.
11The appellant testified, as did an expert called on his behalf. The focus of the expert’s testimony was on the level of force that had been used and the rationale behind its use.
12If the appellant is granted leave to appeal from the decision of the summary conviction appeal court, he will again argue that his actions were justified under s. 25(1). Specifically, the appellant would argue that the summary conviction appeal judge erred in finding that:
the trial judge considered not only whether the appellant’s actions were required by law but also that they were authorized by law; and
s. 25(1) did not afford the appellant a defence based on his honest and reasonable mistaken belief that his use of force was necessary.
ANALYSIS
13Leave to appeal in summary conviction proceedings is to be granted only sparingly where: (1) the appeal raises a question of law that is arguable and the proposed question of law has significance to the administration of justice beyond the particular case; or, (2) where the appellant can show a strong likelihood that the conviction was sustained at the first level of appeal because of an error in law: R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641, at paras. 32-34.
14The first proposed ground of appeal does not justify granting leave because, contrary to the appellant’s submission and as the summary conviction appeal judge found, the trial judge did address the question of whether the appellant’s actions were “authorized in law” in addition to whether they were “required by law”. The appellant’s defence failed because he was found to have acted unreasonably and used excessive force.
15As for the second proposed ground of appeal, we do not accept that the reasons of the summary conviction appeal judge demonstrate legal error. It is clear that the summary conviction appeal judge accepted that the subjective/objective test set out in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34, applied in assessing whether the appellant acted on an honest but mistaken belief. However, he found that such a defence did not have an air of reality in the circumstances of this case.
16For these reasons, we do not see the proposed appeal as raising an unsettled question of law or one with significance to the administration of justice beyond the particular case. Furthermore, the merits of the proposed appeal are not strong and we see no error of law.
DISPOSITION
17Accordingly, the application for leave to appeal is dismissed.
“E.E. Gillese J.A.”
“P. Lauwers J.A.”
“Chris Speyer J. (ad hoc)”
