COURT OF APPEAL FOR ONTARIO
MacPherson, Simmons and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Kent Rice
Respondent
Molly Flanagan, for the appellant
Gregory Lafontaine, for the respondent
Heard: June 24, 2015
On appeal from the decision of Justice Thomas A. Heeney of the Superior Court of Justice, dated May 30, 2014.
ENDORSEMENT
Introduction
1During a police investigation into a disturbance at an apartment building, a surveillance video captured the respondent police officer leaning over a suspect as he was lying on the stairwell floor. The video shows the respondent hitting the suspect in the face with an open palm and twice kicking him, once in the ribcage area and once in the back. The issue at trial was whether under s. 25 of the Criminal Code, the force used by the respondent during his arrest of the appellant was excessive.
2The trial judge found that hitting the suspect in the face was not excessive force. However, he found that the two kicks to the suspect, evidenced on the video, were unnecessary and that they did amount to excessive force. He convicted the respondent of assault.
3The summary conviction appeal judge found that “the trial judge offered one reason only for concluding that the force used was excessive, and that is that he could see no threat of any aggressive action on the complainant’s part immediately preceding the kicks.” The appeal judge found that the trial judge effectively imported a “pre-condition” to the use of force; that is, that there must be an aggressive action on the part of a person being arrested. The appeal judge concluded that this was an error in principle and in law. He went on to hold that the kicking was not excessive force and he set aside the conviction and entered an acquittal.
4The Crown seeks leave of this court to further appeal the decision of the summary conviction appeal judge.
Leave to Appeal
5It is our view that leave to appeal should be granted because the appeal is arguable and the proposed question of law – the appeal judge’s understanding of the test pursuant to s. 25 of the Criminal Code – has significance to the administration of justice beyond the four corners of the case. Moreover, as this court explained in R. v. O’Meara, 2012 ONCA 420, [2012] O.J. No. 2752 (C.A.) at para. 25:
While this is the second appeal of this matter, it is the Crown’s first appeal. Unlike an order for a re-trial, the finality of the decision of a summary conviction appeal judge in this case meant that a further appeal was the only mechanism to the Crown to review that outcome.
The Appeal
6On the merits of the appeal, we disagree with the appeal judge. The trial judge understood the test to be applied and properly assessed all the circumstances surrounding the use of force, as he was required to: see, R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paras. 32-34. Included in his assessment was whether or not the suspect was acting aggressively. The video evidence strongly supports, among other things, the trial judge’s finding that the suspect was not.
7The trial judge assessed all of the circumstances surrounding the use of force, including the respondent’s explanation that the two kicks were reasonable under s. 25 to ensure compliance with his request to stand up to be arrested. He also considered the very telling surveillance video. He determined that some of the respondent’s force was justified and some was not. In doing so he correctly considered the suspect’s aggression or lack of same as a relevant contextual factor in the analysis. He did not, as the appeal judge suggests, impose a pre-condition of “aggressive action on the part of an arrestee” to justify the use of police force under s. 25 of the Criminal Code.
8The appeal judge allowed that “on its own, the optics [from the video] are not good”. However, he found that, “the kicks were administered solely for the purpose of enforcing compliance with the officer’s orders to stand and submit to arrest.” He concluded that in this circumstance the force was justified. Unfortunately, his analysis fails to consider proportionality and how kicking the suspect twice, as shown on the video, is a justified use of force in these circumstances. As Nasogaluakmakes clear at para. 42:
While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. (Emphasis added)
9Absent the error that the appeal judge wrongly attributed to the trial judge, and having accepted all the facts as found by the trial judge, there was no basis upon which to interfere with the trial judge’s decision.
Disposition
10Leave to appeal is granted, the appeal is allowed, and the finding of guilt made at trial is restored.
11A sentence appeal was pending before the appeal judge. He said he would have allowed it and imposed a conditional discharge.
12Under ss. 839(2) and 686(4)(b)(ii) of the Criminal Code, the court of appeal may allow an appeal, and “except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty … and pass a sentence that is warranted in law.” Further, under s. 686(8), where a court of appeal exercises any of the powers conferred by s. 686(4), the court “may make any order, in addition, that justice requires.”
13The Crown does not oppose this court imposing sentence and acknowledges that a conditional discharge is an available sentence. In all the circumstances, we conclude that rather than remitting this matter to the appeal judge, this court should dispose of the pending sentence appeal and that a conditional discharge is the appropriate sentence.
14Accordingly, the suspended sentence imposed by the trial judge is set aside, and a discharge is imposed, conditional on the respondent complying with a probation order on the same terms and for the duration imposed by the trial judge.
“J.C. MacPherson J.A.”
“Janet Simmons J.A.”
“H.S. LaForme J.A.”
