Court of Appeal for Ontario

Date: August 29, 2025

Docket: COA-24-CR-0090

Judges: Pepall, Coroza and Dawe JJ.A.

Between

His Majesty the King Appellant

and

Paul Fyke Respondent

Counsel

Vallery Bayly, for the appellant

Joseph J. Markson and Madeleine C. Ross, for the respondent

Heard

April 29, 2025

Appeal

On appeal from the acquittal entered on December 20, 2023 by Justice Patrick Hurley of the Superior Court of Justice, with reasons reported at 2024 ONSC 169.

Decision

Dawe J.A.:

A. Introduction

[1] The respondent, Cst. Paul Fyke, is a Belleville police officer. He and another officer, Cst. Jeffrey Smith, were jointly charged with assault causing bodily harm arising out of an arrest. The trial judge found Cst. Smith guilty of the included offence of common assault, but acquitted the respondent. The Crown appeals the respondent's acquittal. [1]

[2] The arrest at issue occurred after the respondent, while off duty, was told by employees at a hardware store that a man wearing a white hat had taken an energy drink without paying for it. The suspect in the white hat was with two other men, who were both wearing black hats. One of these other men was the complainant, Mario Baptiste Jr.

[3] The respondent watched the group of men for about 15 minutes but did not see them take anything. After the men left the hardware store, the respondent followed them as they drove to a fast-food restaurant, while calling for backup. In the parking lot outside the restaurant the respondent met with a group of uniformed on-duty police officers, including Cst. Smith, and briefed them on the situation. He told the other officers that he believed there were grounds to arrest all three men for the theft of the energy drink, but did not direct them to make any arrests.

[4] The uniformed officers then entered the restaurant, and Cst. Smith purported to arrest all three men for the theft of the energy drink. Officers escorted a young man in a white hat and another man wearing a black hat out of the restaurant. However, Mr. Baptiste refused to get up from the table where he was seated. Approximately four minutes after the officers entered the restaurant, Cst. Smith grabbed Mr. Baptiste and began trying to pull him out from behind the table. At this point, the respondent, who remained outside the restaurant and had gone back to his vehicle to make a phone call, looked over and saw through the restaurant window that Cst. Smith was struggling with Mr. Baptiste. The respondent then entered the restaurant, and he and Cst. Smith forced Mr. Baptiste to the floor.

[5] The trial judge found that it was Cst. Smith who made the decision to arrest all three men for the alleged theft of the energy drink by the man in the white hat, based on the information he had received from the respondent. The trial judge found further that this information did not rise to the level where it gave the officers reasonable grounds to arrest Mr. Baptiste, who was plainly not the man the store employees said they saw taking the drink. He accordingly concluded that Cst. Smith had arrested Mr. Baptiste unlawfully. However, the trial judge was not satisfied beyond a reasonable doubt that Cst. Smith had caused bodily harm to Mr. Baptiste, and accordingly found him not guilty as charged, but guilty of the included offence of common assault.

[6] With respect to the charge against the respondent, the trial judge accepted the respondent's evidence that he did not know what was happening inside the restaurant until he saw through the window that Cst. Smith was struggling with Mr. Baptiste. The trial judge concluded that this put the respondent "in a different legal position" from Cst. Smith, and found him not guilty.

[7] On appeal, the Crown contends that the trial judge's decision to find only one of the two officers guilty of assaulting Mr. Baptiste is an "incongruous" result, which he must have reached by making errors of law. The nub of the Crown's argument is that because the respondent shared Cst. Smith's erroneous belief that there were reasonable grounds to arrest Mr. Baptiste as a party to the theft of the energy drink, both officers should have been found to have acted unlawfully in making the arrest.

[8] I would dismiss the appeal. The trial judge properly instructed himself on the governing legal principles, and made factual findings that were available on the record, and which in any event would not be reviewable on a Crown appeal of an acquittal which must be based on a question of law alone: Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a). Two of these factual findings drove the result. First, the trial judge found that it was Cst. Smith, not the respondent, who made the decision to arrest Mr. Baptiste for theft. Second, he found that the respondent did not know what happened inside the restaurant until he looked over and saw the altercation between Cst. Smith and Mr. Baptiste through the window. Having made these findings, the trial judge was entitled to be left with a reasonable doubt about whether a reasonable person in the respondent's position would have realized that Cst. Smith was making an unlawful arrest. The trial judge was accordingly entitled to conclude as he did that the Crown had not disproved the respondent's defence that he had used lawful force when he went to assist Cst. Smith.

B. Factual Background

[9] One evening in November 2019, the respondent, while off duty, went with his wife to a Lowe's hardware store to return some items. He overheard store employees discussing a possible shoplifting by a group of three men, and identified himself as a police officer and offered to assist. The employees told the respondent that one of the men, who was wearing a white hat, had taken an energy drink without paying for it. It was common ground at trial that this man was not Mr. Baptiste, who was one of the other two men in the group. Mr. Baptiste was wearing a black toque and the other man was wearing a black hat.

[10] The respondent suspected that the three men might be planning to commit a larger "distraction theft." He watched them for the next 15 minutes before he left the hardware store and went to his vehicle. Although the respondent had not seen the men taking anything, he remained suspicious of them, in part because they then left the store using different exits and drove away quickly. He accordingly followed them in his vehicle, while calling for backup.

[11] The three men drove to a Taco Bell restaurant and went inside. In the parking lot outside the restaurant, the respondent met with a group of uniformed officers who had responded to his call, including Cst. Smith. The respondent testified that he told the officers what had happened and shared with them his beliefs (i) that the man in the white hat had taken an energy drink without paying; (ii) that his two companions were parties to this theft; and (iii) that grounds existed to arrest all three men for theft. However, the trial judge found that the respondent did not direct the other officers to make any arrests.

[12] Cst. Smith and several other uniformed officers then entered the restaurant, while the respondent remained outside in the parking lot. The respondent's evidence, which was confirmed by exterior security video footage, was that after these officers entered the restaurant, he and another officer went over to inspect the truck in which the three men had arrived, but did not observe any stolen goods. The respondent then returned to his own vehicle to make a phone call. The trial judge accepted the respondent's evidence that he therefore did not see most of what happened inside the restaurant during the first four minutes after the officers entered.

[13] Events inside the Taco Bell were captured on a security video camera recording. When the officers first entered the restaurant, the three men had just picked up their orders and were seating themselves around a corner table. Cst. Smith and one of the other officers testified that when they approached the table Cst. Smith told the three men they were all under arrest for the theft of the energy drink, but Mr. Baptiste disputed that Cst. Smith said this. The man in the white hat and the third man both complied with the police demands, standing up and allowing themselves to be handcuffed and escorted out of the restaurant by two of the officers.

[14] However, Mr. Baptiste remained seated in the corner behind the table. Several witnesses testified that he insisted that he had done nothing wrong, showed Cst. Smith a receipt for items he said he had purchased, and refused to stand up or submit to being arrested. Approximately four minutes after the officers had first entered the restaurant, Cst. Smith reached over and took hold of Mr. Baptiste, and he and another uniformed officer began trying to pull Mr. Baptiste out from behind the table. The respondent's evidence was that at this point he was sitting in his vehicle, and looked over and saw Cst. Smith struggling with Mr. Baptiste. This prompted him to enter the restaurant to assist. The video recording shows the respondent entering the restaurant and helping Cst. Smith and the other officer restrain Mr. Baptiste and take him to the floor.

[15] Mr. Baptiste's evidence was that during the struggle the respondent choked him into unconsciousness, and he maintained that he also suffered a fractured rib and a broken pinky finger on his right hand. The trial judge was not satisfied that the respondent applied a chokehold to Mr. Baptiste, or that Mr. Baptiste's rib was fractured during the arrest, since the age of this fracture was "indeterminate". Although the trial judge found that the "fresh" fracture of Mr. Baptiste's right pinky finger was "likely" sustained during the arrest, he found "that the Crown has failed to prove that any force applied by Constable Smith significantly contributed to the finger fracture." He accordingly acquitted Cst. Smith of assault causing bodily harm, and found him guilty of the included offence of common assault.

[16] However, the trial judge acquitted the respondent, giving oral reasons on December 20, 2023 and subsequent written reasons on January 8, 2024. I will discuss his reasons for acquitting the respondent later.

C. The Legal Framework

[17] Section 495(1)(a) of the Criminal Code authorizes police officers to make a warrantless arrest of a person who they believe on reasonable grounds has committed an indictable offence. As Cory J. explained in R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51:

[A]n arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

When one police officer directs another officer to make a warrantless arrest and/or conduct a warrantless search incidental to an arrest, the key question is whether the officer who ordered the arrest or search had the necessary reasonable grounds: see e.g., R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 1166-67.

[18] Questions about the lawfulness of warrantless arrests arise most often in cases where the person who was arrested seeks a Charter remedy, arguing that their arrest was unlawful, and that it was thus arbitrary and violated the arrestee's s. 9 Charter rights: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 54-56. It is ordinarily the arrestee's burden to establish the unlawfulness of an arrest on a balance of probabilities, but the burden sometimes shifts to the Crown to establish on a balance of probabilities that an arrest was lawful: see R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, at para. 75.

[19] However, the situation is different when, as here, police officers are charged with assaulting a person they have arrested. Section 25(1) of the Criminal Code provides that police officers carrying out their lawful duties are justified in using "as much force as is necessary for that purpose", as long as they act "on reasonable grounds". A police officer charged with assault may raise s. 25(1) as a defence. If there is an air of reality to the defence, it becomes the Crown's burden to disprove it on the criminal standard of proof. This requires the Crown to disprove at least one of the defence's essential elements beyond a reasonable doubt.

[20] In the case on appeal, the Crown's challenge to the respondent's s. 25(1) defence focused on whether he had reasonable grounds for arresting Mr. Baptiste, or for believing that Mr. Baptiste was being lawfully arrested by Cst. Smith. In the circumstances here, these two questions were intertwined, since if the respondent had reasonable grounds to believe that Cst. Smith was lawfully arresting Mr. Baptiste, he would also have had reasonable grounds to arrest Mr. Baptiste for the offence of assaulting a police officer engaged in the execution of his duty: Criminal Code, ss. 270(1)(a), 495(1)(a).

[21] Importantly, when multiple officers are jointly charged with assaulting a suspect during an arrest, the lawfulness of each officer's conduct must be considered separately. In some circumstances, the evidence will establish that one officer acted unlawfully, but will not prove beyond a reasonable doubt that a different officer acted unlawfully: see Cluett v. The Queen, [1985] 2 S.C.R. 216.

D. The Trial Judge's Reasons

[22] The trial judge found that Cst. Smith's arrest of Mr. Baptiste was unlawful. He found that the information the respondent had received from the Lowe's employees, which the respondent had conveyed to Cst. Smith and which Cst. Smith had relied on to arrest all three men, did not give either officer objectively reasonable grounds to believe that Mr. Baptiste was a party to the theft of the energy drink by the man in the white hat. The trial judge explained:

It follows from this finding that Constable Smith did not have, as a matter of law, reasonable and probable grounds to arrest Mr. Baptiste as a party to the theft of the drink. Constable Smith acknowledged in his testimony that this was the sole basis for the arrest and he made the decision to do so before he entered the Taco Bell. It was therefore an unlawful arrest and he cannot rely on s. 25(1) of the Criminal Code to justify the use of force against Mr. Baptiste.

Neither party takes issue with this aspect of the trial judge's decision.

[23] However, the trial judge then went on to find that he was not satisfied that the respondent had acted unlawfully when he came to Cst. Smith's assistance and used force to help subdue Mr. Baptiste. The trial judge accepted the respondent's testimony that he did not know what had happened inside the restaurant until he saw through the window that Cst. Smith and Mr. Baptiste were engaged in a struggle. The trial judge noted that this put the respondent "in a different legal position" from Cst. Smith, and explained:

I accept [the respondent's] testimony that once he saw Constable Smith with his hands on Mr. Baptiste, he believed Constable Smith was arresting him. When [the respondent] saw the struggle develop, he could reasonably conclude that Mr. Baptiste was either assaulting Constable Smith or resisting arrest. I also find that, upon entering the Taco Bell, he heard Constable McAuley [one of the other officers in the restaurant] telling Mr. Baptiste to stop resisting. Even without hearing that, it would have been readily apparent that Mr. Baptiste was actively resisting Constable Smith's efforts to gain physical control of him.

[24] The trial judge addressed the Crown's objection that the respondent "did not articulate that these were his grounds for arresting Mr. Baptiste at the time nor did he expressly say so in his testimony at trial" by referring to this court's decision in R. v. Fyfe, 2023 ONCA 715, 432 C.C.C. (3d) 145, explaining:

[A]s the recent decision in Fyfe makes clear, what matters is not what the officer specifically said but his subjective perception at that moment in time and whether there was some objective justification or verification of the officer's belief. Here there was.

[25] The trial judge concluded his reasons by explaining why he was also not satisfied beyond a reasonable doubt that the respondent used excessive force against Mr. Baptiste. The Crown takes no issue with this latter aspect of the trial judge's decision.

E. Arguments and Analysis

[26] The Crown makes two main arguments in support of its position that the trial judge erred in law by acquitting the respondent. First, the Crown contends that when the trial judge assessed whether the respondent had objectively reasonable grounds for arresting Mr. Baptiste, he failed to properly consider the "totality of the circumstances" known to the respondent: see e.g., R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 72. According to Crown counsel, there were three main circumstances that should have led the trial judge to find that the respondent acted unlawfully when he used force against Mr. Baptiste: (i) it was the respondent who provided Cst. Smith with the information that Cst. Smith relied on to arrest Mr. Baptiste for the theft of the energy drink; (ii) the respondent, like Cst. Smith, erroneously believed that this information gave the officers reasonable grounds to arrest Mr. Baptiste as a party to the alleged theft; and (iii) the respondent correctly assumed that this was what Cst. Smith had been doing when the struggle with Mr. Baptiste broke out.

[27] The Crown argues further that if the trial judge had properly considered these three factors, he would have been obliged to find the respondent guilty of assault. According to the Crown, the respondent "knew the arrest was being performed on the grounds he provided, which the [trial] judge determined were insufficient", and there was thus no basis in law for treating the respondent differently from Cst. Smith, who the trial judge found guilty of common assault. The Crown accordingly seeks to have the respondent's acquittal set aside and a guilty verdict on the included offence of common assault entered against him: Criminal Code, s. 686(4)(b)(ii).

[28] I do not agree that the facts found by the trial judge compelled him to find the respondent guilty, or that it can be inferred that the trial judge must have acquitted the respondent because he either failed to properly consider the totality of the circumstances or misunderstood the law.

[29] As discussed above, it was the Crown's burden to disprove the respondent's s. 25(1) Criminal Code defence. In the context of this case, this required the Crown to prove beyond a reasonable doubt that the respondent was acting unlawfully when he used force against Mr. Baptiste. The Crown could do this either by proving that the respondent did not subjectively believe that there were grounds to lawfully arrest Mr. Baptiste, or by establishing that the factual circumstances known to him were such that a reasonable person in his position, with comparable knowledge, training, and experience, would not have concluded that there were grounds to arrest Mr. Baptiste.

[30] However, since the Crown did not dispute at trial that the respondent had subjectively, albeit mistakenly, believed that there were reasonable grounds to arrest Mr. Baptiste as a party to the theft of the energy drink, the Crown was relying entirely on the objective prong of the test for arrest. The Crown accordingly had to prove on the criminal standard that a reasonable person in the respondent's position would not have believed that there were grounds to arrest Mr. Baptiste. Importantly, this question did not turn on what the respondent himself thought or believed. Rather, it required an assessment of what "a reasonable person placed in the position of the officer" would have thought and concluded: Storrey, at p. 251; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 24; Beaver, at para. 72.

[31] In Fyfe, at paras. 48-63, this court rejected the argument "that, as a matter of law, a trial judge's assessment of the objective reasonableness of the grounds for arrest must be based on the subjective grounds articulated by the arresting officer." As van Rensburg J.A. explained, at para. 59, "[t]he focus is not on the officer's subjective perception, but on what a reasonable person standing in the shoes of the officer would have perceived." The trial judge in this case was accordingly required to consider "the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer": R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22. The Crown had to prove that such a reasonable person – who, like the respondent, was a trained police officer – would not have concluded that there were reasonable grounds to arrest Mr. Baptiste on any basis, including for reasons that the respondent may not himself have subjectively considered.

[32] This reasonable officer, unlike the respondent himself, would have understood that the information provided by the Lowe's employees about the theft of the energy drink by the man in the white hat did not give the officers reasonable grounds to arrest a different person, Mr. Baptiste. Even though this reasonable officer would also have known that the respondent had expressed to the other officers his erroneous opinion that Mr. Baptiste was arrestable as a party to the theft, they would also have known that the respondent had not directed Cst. Smith to make any arrests. Significantly, this reasonable officer, like the respondent, would also not have seen or heard most of what happened inside the Taco Bell for the first four minutes after the uniformed officers first entered.

[33] In my view, a hypothetical reasonable officer who saw Cst. Smith and Mr. Baptiste struggling inside the Taco Bell in these circumstances would not have jumped to the conclusion that Cst. Smith was making an unlawful arrest. Rather, they would have considered whether something might have happened that gave Cst. Smith grounds to arrest Mr. Baptiste lawfully, either for the theft of the energy drink or for something entirely different. The hypothetical reasonable officer also would not have had the luxury of reflecting on the situation before deciding whether to go to Cst. Smith's assistance: see Beaver, at para. 72; R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 750, leave to appeal refused, [1997] S.C.C.A. No. 571.

[34] To put the matter somewhat differently, while the respondent subjectively believed that Cst. Smith was arresting Mr. Baptiste for the theft of the energy drink, his assumption was influenced by his own mistaken belief that such an arrest would be lawful. The Crown agrees that this misunderstanding of the law cannot be attributed to the hypothetical reasonable officer, who must be taken as knowing and properly applying the law: see Tim, at paras. 27-31. If this reasonable officer would have mistakenly concluded that Cst. Smith was acting lawfully, and would thus have gone to his assistance, the respondent could not be found to have acted unlawfully because he made the same decision for the wrong reasons: see Fyfe.

[35] In my view, it was open to the trial judge to conclude that the Crown had not met its burden of proving on the criminal standard that a reasonable officer in the respondent's position would have known that Cst. Smith was acting unlawfully. The trial judge correctly instructed himself on the applicable legal principles, and I am not persuaded that we can infer that he misapplied or misunderstood the law, or that he failed to properly consider all of the relevant circumstances.

[36] The Crown's second argument is that the trial judge erred by finding that the respondent "had reasonable and probable grounds to arrest Mr. Baptiste for assaulting a peace officer or resisting arrest". According to the Crown, on the facts found by the trial judge, "there was no evidence on which the judge could infer that it was objectively reasonable for [the respondent] to believe the [arrest] initiated by Cst. Smith was lawful."

[37] Although the trial judge did make an affirmative finding that the respondent had acted lawfully, it was unnecessary for him to go this far. The respondent was not obliged to prove that he had acted lawfully. Rather, as I have explained, it was the Crown's burden to defeat his s. 25(1) defence by proving beyond a reasonable doubt that he had acted unlawfully. This ground of appeal, as framed by the Crown, fails to take the burden and onus of proof into account. The trial judge was not called on to determine whether a reasonable officer in the respondent's position would have believed that Cst. Smith was acting lawfully. Rather, his task was to decide whether he was satisfied beyond a reasonable doubt that no reasonable officer could have come to this conclusion.

[38] I agree with counsel for the respondent that the trial judge made a critical finding of fact when he accepted the respondent's evidence that he did not know most of what happened in the Taco Bell during the first four minutes after Cst. Smith and the other uniformed officers entered the restaurant. In the circumstances here, there were any number of things that could have happened inside the restaurant, unbeknownst to the respondent, that would have given Cst. Smith grounds to lawfully arrest Mr. Baptiste. Like the jury in Cluett, the trial judge was entitled to have a reasonable doubt about whether a reasonable officer in the respondent's shoes, faced with this same informational gap, would have concluded that Cst. Smith was acting unlawfully and thus would not have gone to his assistance.

[39] For these reasons, I would not give effect to either of the Crown's grounds of appeal.

F. Disposition

[40] In the result, I would dismiss the appeal and uphold the respondent's acquittal.

Released: August 29, 2025

"S.E.P."

"J. Dawe J.A."

"I agree. S.E. Pepall J.A."

"I agree. S. Coroza J.A."

Footnote

[1] The Crown has abandoned its appeal of Cst. Smith's acquittal on the assault causing bodily harm charge.