



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rice, 2015 ONCA 478

DATE: 20150626

DOCKET: C58988

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

[1]

During 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.

[2]

The 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.

[3]

The 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 complainants 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.

[4]

The Crown seeks leave of this court to further appeal the decision of
    the summary conviction appeal judge.

Leave to Appeal

[5]

It is our view that leave to appeal should be granted because the appeal
    is arguable and the proposed question of law  the appeal judges 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 t
his court explained in
R. v. OMeara
,
[2012] O.J. No. 2752 (C.A.) at para. 25
:

While this is the second appeal of this
    matter, it is the Crowns 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

[6]

On 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] 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 judges finding that
    the suspect was not
.

[7]

The trial judge assessed all of the circumstances surrounding the use of
    force, including the respondents 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 respondents force was justified and some was not. In doing so
    he correctly considered the suspects 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
.

[8]

The 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 officers 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
Nasogaluak
makes 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)

[9]

Absent 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 judges decision.

Disposition

[10]

Leave
    to appeal is granted, the appeal is allowed, and the finding of guilt made at
    trial is restored
.

[11]

A
    sentence appeal was pending before the appeal judge. He said he would have
    allowed it and imposed a conditional discharge.

[12]

Under
    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.

[13]

The
    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.

[14]

Accordingly,
    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.


