



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Remus, 2014 ONCA 914

DATE: 20141219

DOCKET:
C58287

Gillese and Lauwers JJ.A., and Speyer J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

James Remus

Appellant

Paul Burstein, for the appellant

Chris Dwornikiewicz, for the respondent

Heard: December 17, 2014

On appeal from the Summary Conviction Appeal Court decision
    dated January 10, 2014, by Justice John F. McCartney of the Superior Court of
    Justice, dismissing the appeal against convictions entered on May 16, 2013, by Justice Theo Wolder of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was a police officer with the Nishnawabe-Aski Police
    Service.  He arrested the complainant, who was drunk, for breach of the peace.

[2]

The appellant was convicted of one count of assault and one count of
    assault with a weapon after the trial judge found that the appellant had acted
    unreasonably and used excessive force when dealing with the complainant.

[3]

The appellant appealed to the summary conviction appeal court.  The
    decision of the Ontario Court of Justice was upheld and his appeal was
    dismissed.  He now seeks leave to appeal to this court.

BACKGROUND IN BRIEF

[4]

The interactions between the appellant and the complainant which led to
    the convictions were captured on video.

[5]

The appellant gestured to the complainant to enter a cell.  The
    complainant complied but the appellant pulled him back out so that he could be
    searched before entering the cell.  The complainant did not remove his jacket
    when so instructed because he was cold.  When the appellant tried to remove the
    complainants jacket, the complainant pushed or slapped the appellants hand
    away from his jacket zipper.  On the findings of the trial judge, the
    complainants move was very quick, lasting less than a second. He found that
    the amount of force used by the complainant was low, momentary and trifling,
    a mere flick of the hand.

[6]

Within a further second and a half and without further comment,
    discussion or warning, the appellant grounded the complainant, by
    forcefully throwing him onto the cell blocks concrete floor.  The trial
    judge found the appellants conduct to be severe, disproportionate and
    excessive in the context of what had transpired to that point in time.

[7]

After the complainant was thrown to the ground, he lay on the floor on
    his left side.  The appellant tried to force the complainant to lie on his
    stomach so he could physically place the complainants hands behind his back
    and handcuff him.  The complainant did not co-operate.  The appellant then
    threw five punches in rapid succession, with the closed fist of his right hand,
    at the complainants head and face.  A majority of the blows struck the
    complainant, causing injury to his nose.  The appellant fractured some bones in
    his right hand when some of his punches missed the complainants head and
    landed on the concrete floor.

[8]

When the complainant continued, for 17 seconds, to lie on his left side
    and resist rolling onto his stomach, the appellant pepper sprayed the
    complainant in the face. He was acquitted of the charge of assault with a
    weapon laid in relation to the pepper spraying.

[9]

The appellant succeeded in forcing the complainant to roll onto his
    stomach. However, when the appellant then sat up and did not lie back down
    after being ordered to, the appellant hit the complainant three times with his baton
    before handcuffing him.

[10]

At
    trial, the appellant conceded that he struck the complainant but argued that the
    force used was required and authorized by law and, therefore, was justified
    under s. 25(1) of the
Criminal Code
, R.S.C. 1985, c. C-46.  Section
    25(1) reads as follows:

25. (1) Every one who is required or authorized by
    law to do anything in the administration or enforcement of the law

(a)

as a private person,

(b)

as a peace officer or public
    officer,

(c)

in aid of a peace officer or
    public officer, or

(d)

by virtue of his office,

is, if he acts on reasonable grounds, justified in
    doing what he is required or authorized to do and in using as much force as is
    necessary for that purpose.

[11]

The
    appellant testified, as did an expert called on his behalf.  The focus of the
    experts testimony was on the level of force that had been used and the
    rationale behind its use.

[12]

If
    the appellant is granted leave to appeal from the decision of the summary conviction
    appeal court, he will again argue that his actions were justified under s. 25(1). 
    Specifically, the appellant would argue that the summary conviction appeal judge
    erred in finding that:

1.

the trial judge
    considered not only whether the appellants actions were required by law but
    also that they were authorized by law; and

2.

s. 25(1) did not
    afford the appellant a defence based on his honest and reasonable mistaken
    belief that his use of force was necessary.

ANALYSIS

[13]

Leave
    to appeal in summary conviction proceedings is to be granted only sparingly
    where: (1) the appeal raises a question of law that is arguable and the
    proposed question of law has significance to the administration of justice
    beyond the particular case; or, (2) where the appellant can show a strong
    likelihood that the conviction was sustained at the first level of appeal
    because of an error in law:
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d)
    641, at paras. 32-34.

[14]

The
    first proposed ground of appeal does not justify granting leave because,
    contrary to the appellants submission and as the summary conviction appeal
    judge found, the trial judge did address the question of whether the
    appellants actions were authorized in law in addition to whether they were
    required by law.  The appellants defence failed because he was found to have
    acted unreasonably and used excessive force.

[15]

As
    for the second proposed ground of appeal, we do not accept that the reasons of
    the summary conviction appeal judge demonstrate legal error.  It is clear that
    the summary conviction appeal judge accepted that the subjective/objective test
    set out in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at para.
    34, applied in assessing whether the appellant acted on an honest but mistaken
    belief.  However, he found that such a defence did not have an air of reality
    in the circumstances of this case.

[16]

For
    these reasons, we do not see the proposed appeal as raising an unsettled
    question of law or one with significance to the administration of justice
    beyond the particular case.  Furthermore, the merits of the proposed appeal are
    not strong and we see no error of law.

DISPOSITION

[17]

Accordingly,
    the application for leave to appeal is dismissed.

E.E. Gillese J.A.

P. Lauwers J.A.

Chris Speyer J. (
ad hoc
)


