Court of Appeal for Ontario

Date: 20240228 Docket: C68435

Before: Trotter, Zarnett and Sossin JJ.A.

Between:

His Majesty the King Respondent

and

Joshua Hannaford Appellant

Counsel: Myles Anevich, for the appellant Samuel G. Walker, for the respondent

Heard and released orally: February 26, 2024

On appeal from the conviction entered on March 6, 2020 by Justice Antonio Skarica of the Superior Court of Justice, sitting without a jury, with reasons reported at 2020 ONSC 1388.

Reasons for Decision

[1] The appellant was convicted of break and enter as well as stealing a van, a wallet containing $3,000, two rifles and some ammunition. He was located shortly afterwards. He refused to drop a bag he was carrying and refused to put up his hands when an officer instructed him to do so. He turned towards an officer and said words to the effect of “want to die”. The officer shot at the appellant injuring his leg. He was convicted on all counts.

[2] The appellant submits that the trial judge erred in dismissing his application for a stay of proceedings under s. 7 and s. 24(1) of the Charter, based on the alleged use of excessive force by the arresting officer. The appellant submits that the trial judge misapprehended the evidence of the so called “one plus one policy” - a police practice to assume that there is another outstanding weapon than the one that has already been found. Second, the trial judge misapprehended the evidence relating to the statement made by the appellant shortly before he was shot - “want to die”. More generally, the appellant challenges the trial judge’s ultimate conclusion that the force used by the arresting officer was not excessive.

[3] We would not give effect to any of these grounds of appeal. The trial judge did not misuse the “one plus one policy”. The argument is based on the false assumption that the outstanding weapon must be the same type of weapon as the one already found. There is no support for the proposition that the policy should be read narrowly this way.

[4] The trial judge did not misapprehend the “want to die” statement made by Mr. Hannaford. Whether this was meant and perceived as a direct threat to the officer, or whether the utterance actually reflected the appellant’s wish to be shot and killed by the police, it did not change the emergency situation faced by the officer. It must be remembered that when he made this utterance, the appellant turned towards the officer and, as it turns out, he was armed with a knife.

[5] In terms of the ultimate issue on the use of reasonable force, we see no error in the trial judge’s approach. His conclusions are supported by the record. At trial, the appellants’ counsel took the position that the officer was not justified in discharging his firearm at all. On appeal, in his able submissions, Mr. Anevich concedes that the officer was justified in discharging his firearm the first couple of times, but was not justified in continuing to fire at the appellant after he turned away from the officer. This is a fair concession, but it does not strengthen the appellant’s position. It reduces relevant time frame to as few as three seconds in a dynamic situation on the side of a major highway. In the end the appellant failed to meet his onus to prove that the serious force used that day was unreasonable in all of the circumstances.

[6] The appeal is dismissed.

“Gary Trotter J.A.”

“B. Zarnett J.A.”

“L. Sossin J.A.”