CITATION: R. v. Howard, 2008 ONCA 625

DATE: 20080912

DOCKET: C48455

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Juriansz JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Norman Howard

Appellant

Peter W. S. Copeland for the appellant

Michelle Campbell for the respondent

Heard and released orally: September 4, 2008

On appeal from the decision of Justice Barry MacDougall of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated February 21, 2008, dismissing the appeal from conviction by Justice Timothy C. Whetung of the Ontario Court of Justice dated November 23, 2004.

ENDORSEMENT

[1] This is a proper case to grant leave to appeal. If the appeal judge held that a property owner was required to call police before resorting to force, this was an error. Such a finding would be inconsistent with s. 41 of the Criminal Code.

[2] We need not decide whether the appeal judge so held because in this case, on the findings of fact, the appellant used excessive force. While the trial judge may have used some language inconsistent with R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. 397 (S.C.C.), when he came to consider whether the force used was no more than necessary, he accepted the appellant’s version of events. Given the context especially that the complainant was not creating a disturbance even on the appellant’s version of events, he was not entitled to use the amount of force that he did. Given the Crown’s concession that the complainant was a trespasser that issue is not before us.

[3] Accordingly, while leave to appeal is granted, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“K. Feldman J.A.”

“R. G. Juriansz J.A.”