R v Power, 2016 SKCA 29
[29] The jurisprudence regarding ss. 25(1) and 34(1) is well established and the principles to be applied are fundamentally the same for both provisions. In dealing with s. 25(1), the Supreme Court of Canada in R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 [Nasogaluak], said:
[34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.
[35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude.
[Emphasis added]
[30] The Court in Nasogaluak also stated at para 32 that the force used by a peace officer in the execution of his duty is constrained by principles of proportionality, necessity and reasonableness. It approved the following statement by the Alberta Court of Appeal in R v Nasogaluak, 2007 ABCA 339, 2008 2 WWR 387, of the legal principles involved in deciding whether force is excessive:
[21] Section 25(1) of the Criminal Code provides that a police officer, if he acts on reasonable grounds, is authorized in using as much force as is necessary for the purpose of making an arrest. The test is whether the application of force was objectively reasonable, having regard to the circumstances and dangers in which the officer found himself or herself: Crampton v. Walton, 2005 ABCA 81, 363 A.R. 216 at para. 42.
[31] Turning to s. 34(1), the four components in that defence and the applicable onus of proof have been set out in R v Piapot, 2014 SKCA 9, [2014] 5 WWR 79 [Piapot]:
[28] It is common ground that the elements of a successful s. 34(1) defence are: (a) the accused must have been unlawfully assaulted or perceived that he or she would be unlawfully assaulted by the victim; (b) the accused must not have provoked the assault; (c) the force used by the accused was not intended to cause death or grievous bodily harm; and (d) the force used by the accused was no more than necessary to enable him or her to defend himself or herself. See: R. v. Raphael, 2009 SKCA 16, [2009] 3 W.W.R. 611 at para. 12.
[29] In order to deny an accused person the defence of self-defence, the Crown must prove, beyond a reasonable doubt, that any one of these four elements is not present. See: R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272 at para. 23.
[Emphasis added]
[32] In summary, for both ss. 25(1) and 34(1), the force used by a police officer or a person acting in self-defence must be no more than necessary to enable him or her to defend themselves or effect an arrest. That force need not be measured with exactitude or “to a nicety” when considering the question of proportionality. The law provides for a flexible or tolerant approach to the objective measure of whether force is proportionate (Piapot at para 46).
[33] How to approach the issue of proportionality was explained in R v Szczerbaniwicz, 2010 SCC 15, [2010] 1 SCR 455 [Szczerbaniwicz]. Although that case dealt with defence of property, Abella J. stated (at para 18) that the defence of property provisions of the Criminal Code dealing with the level of force are similar to other Criminal Code provisions incorporating the words “no more force than necessary”. She stated:
[20] The “proportionality” approach has more recently been characterized as an inquiry into whether the force used was “reasonable in all the circumstances”, as Charron J. confirmed in R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at para. 25, a case involving s. 41(1). …
[21] The reasonableness of “all the circumstances” necessarily includes the accused’s subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required: the subjective belief must be based on reasonable grounds. …
[34] In support of this approach, Abella J. cites the statements of Fraser C.J.A. in R v Kong, 2005 ABCA 255 at paras 95-100, [2006] 5 WWR 405 [Kong], appeal allowed on other grounds 2006 SCC 40, [2006] 2 SCR 347, the relevant portions of which read as follows:
[95] … Since the law of self-defence is rooted in necessity, self-defence properly stops where necessity ends. As with the defence of necessity, proportionality is required between the harm inflicted and the harm sought to be avoided. In other words, the responsive force must have been proportionate to the assault threatened or inflicted.
[96] Therefore, in assessing whether there is an air of reality to the proportionality requirement, that is whether the responsive force was no more than necessary in the circumstances, a judge must also consider the following:
1. the nature and extent of the assault or threatened assault the accused faced (the “threat assessment”); and
2. the nature and extent of the responsive force the accused actually used.
[97] In my view, the threat assessment involves a modified objective inquiry. After all, in assessing whether an accused’s responsive force meets the proportionality requirement, the situation in which that particular accused finds himself or herself is highly relevant. The fact that the threat assessment by the accused is based in part on trying to infer someone else’s intentions also explains why a court must focus first on an accused’s subjective perception of the degree of violence of the assault or threatened assault. Nevertheless, an accused’s belief must also be reasonable on the basis of the situation he or she perceives. Indeed, factors peculiar not only to the accused, but also the alleged victim, have historically been regarded as proper considerations in assessing the nature and extent of the threat. For example, in analyzing the nature of the threat, the relative strength and size of the parties involved will be a relevant consideration: R. v. Nelson (1953), 1953 CanLII 432 (BC CA), 105 C.C.C. 333 (B.C. C.A.). So too will be other personal characteristics, for example, gender and age.
…
[100] With respect to the proportionality requirement - the responsive force must have been no more than necessary in the circumstances - I have concluded that this should be assessed using an objective test only. By this, I mean that the trial judge is to consider whether, from the perspective of a reasonable person in the circumstances of the accused, there is an air of reality to an accused’s claim that the force used was objectively no more than necessary given the nature and quality of both the threat and the responsive force. That reasonable person is to be invested with the characteristics of the accused in terms of size, strength, gender, age and other immutable characteristics. If the responsive force used exceeds that which was objectively necessary, then the protection of s. 34(1) is lost.
[Emphasis added, footnotes omitted]
[35] On the basis of the foregoing, a determination of whether force is reasonable in all the circumstances involves a consideration of three factors. First, a court must focus on an accused’s subjective perception of the degree of violence of the assault or threatened assault against him or her. Second, a court must assess whether the accused’s belief is reasonable on the basis of the situation as he or she perceives it. Third, the accused’s response of force must be no more than necessary in the circumstances. This needs to be assessed using an objective test only, i.e., was the force reasonable given the nature and quality of the threat, the force used in response to it, and the characteristics of the parties involved in terms of size, strength, gender, age and other immutable characteristics.
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