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Police - Assault. R. v. Fyke
In R. v. Fyke (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown appeal, here from an acquittal for "assault causing bodily harm" against a police officer.
The court considers law that "police officers carrying out their lawful duties are justified in using “as much force as is necessary for that purpose”", here in the context of multiple officers:[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 CanLII 52 (SCC), [1985] 2 S.C.R. 216.
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[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. . R. v. Gilmore-Bent
In R. v. Gilmore-Bent (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here from a Charter s.24(1) stay of proceedings granted after the trial judge found a correctional officer violated the defendant's "Charter rights by using excessive force against him when the officer gratuitously sprayed Mr. Gilmore-Bent with pepper spray while he was in custody awaiting trial".
Here the court considers 'authorized force' for the "administration or enforcement of the law" [CCC 25(1)]:[38] .... the trial judge began her decision by correctly identifying the law of authorized force, explicitly describing the elements of s. 25(1) of the Criminal Code, including its requirement that the justification for force is to be assessed based on reasonable and probable grounds: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34. ....
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[41] The trial judge’s finding about Officer Warburton’s subjective state of mind also explains why she did not engage in a pointed examination of the objective reasonableness of the degree of force that Officer Warburton used. For force to be justified under s. 25, an officer must subjectively believe that the force they used was necessary, since it is the officer’s belief that must be objectively reasonable: Nasogaluak, at para. 34; Webster v. Wasylyshen, 2007 ABCA 23, 69 Alta L.R. (4th) 205, at para. 26.
[42] Once the trial judge determined that Officer Warburton deployed the pepper spray gratuitously, there was no need for her to continue discussing the reasonableness of the degree of force he used. . R. v. Lindsay
In R. v. Lindsay (SCC, 2023) the Supreme Court of Canada considered the 'justified police force' provisions of s.25 CCC:Nor do we accept the appellant’s argument that the trial judge erred in concluding that s. 25(1) of the Criminal Code, R.S.C. 1985, c. C-46, did not provide a defence for the appellant’s use of force against the individual. 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” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34). ... . R. v. Black
In R. v. Black (Ont CA, 2023) the Court of Appeal considered a Charter s.7 criminal appeal, alleging a police beating. The 'justified police force' provisions of CCC 25(4) were pivotal ['Protection of persons acting under authority - When Protected']:[3] The appellant claimed that he suffered the injuries when he was beaten by the police and that the injuries suffered by him constituted a breach of his rights under s. 7 of the Charter. The appellant further argued that the police conduct was sufficiently egregious to warrant a stay of the criminal proceedings brought against him. ...
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The Section 7 Claim
[5] A police officer is justified in using force intended to cause grievous bodily harm in only limited circumstances: Criminal Code, s. 25(4). In essence, the officer must believe, on reasonable grounds, that the use of that force was necessary to protect the officer or others from grievous bodily harm: R. v. Nasogaluak, 2010 SCC 6, at para. 34. The ultimate determination of whether an officer’s use of force was justified under s. 25(4) of the Criminal Code is a question of law reviewable on a correctness standard. However, in deciding that question of law, this court must accept the relevant findings of fact made by the trial judge unless those findings are tainted by a material misapprehension of evidence, a failure to consider relevant material evidence, or are unreasonable: R. v. Shepherd, 2009 SCC 35, at para. 20.
[6] The trial judge concluded that, on the facts as he found them, the police actions were justified under s. 25(4) of the Criminal Code. Counsel for the appellant submits that the trial judge’s factual findings are premised on a material misapprehension of the evidence and that this court is not bound by those findings.
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[15] Moving from the trial judge’s factual findings to the application of the law to those findings, we are satisfied that, on the facts as found by the trial judge, the officers were justified under s. 25(4) in using the force they used. The relevant facts include:. When the police attended at the residence to execute the search warrant, they had reasonable grounds to believe that one of the occupants was a violent criminal in possession of firearms;
. Before the police entered the premises, they saw the appellant running around inside. He appeared to be in a panic after seeing the police presence;
. The police had reasonable grounds to believe that the person running around in the apartment was the person known to them to have a criminal record and carry firearms;
. The police first tasered the appellant in response to the appellant kicking one of the officers and refusing to cooperate;
. After the first tasering, it was reasonable for the police to believe that the person in the bathtub was carrying a firearm and continued to pose a danger to them; and
. The force applied by the officers after the first tasering amounted to reasonable efforts to gain control of the appellant and protect themselves should the appellant have been armed. [16] On the trial judge’s findings, the actions of the police officers fall within the justification defence created by s. 25(4). There was no breach of s. 7 of the Charter, and no basis upon which to stay the proceedings.
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