SUPREME COURT OF CANADA

Harper v. The Queen, [1982] 1 S.C.R. 2

Date: 1982-01-26

Lorne James Harper Appellant;

and

Her Majesty The Queen Respondent.

File No.: 16137.

1981: May 21; 1982: January 26.

Present: Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law — Duty of an appellate tribunal — Charge of assault causing bodily harm — Trial judge failing to consider evidence of four witnesses — Whether the trial judge overlooked evidence bearing on the relevant issue — New trial ordered.

An incident that occurred during appellant police officer's arrest of a youth for drunkenness led to his being charged and convicted of assault causing bodily harm. The trial judge did not take into account the evidence of four witnesses who did not, in his opinion, observe the events at the moment the appellant was alleged to have hit the youth. The question is whether, by eliminating this evidence, the trial judge has so misdirected himself as to the relevant evidence that the conviction cannot stand.

Held (Ritchie J. dissenting): The appeal should be allowed.

Per Martland, Dickson, Beetz, Estey, McIntyre and Lamer JJ.: An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. Its duty, however, includes a review of the record below to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record discloses a lack of appreciation of relevant evidence, the reviewing tribunal must intercede. In the present case, a review of the record showed that the trial judge failed entirely to consider all the evidence bearing on the time period which he himself found to be vital. A new trial is ordered.

Per Ritchie J., dissenting: Only in the rarest cases will the Court accept the responsibility, as a second court of appeal, of reversing findings of fact based upon the trial judge's assessment of the credibility of the witnesses. Here, none of the four witnesses purported to have

[page 3]

observed the actions during the vital period. They could assert that they saw appellant deliver no blows but were unable to say that no blows had been delivered at the time complained of. Furthermore, appeals brought pursuant to s. 618(1)(6) of the Criminal Code are limited to questions of law; questions concerning a difference of opinion as to the sufficiency of evidence are not included in that section.

[MacDonald v. The Queen, [1977] 2 S.C.R. 665; Ungaro v. The King, [1950] S.C.R. 430, considered.]

APPEAL from a judgment of the Court of Appeal of British Columbia dismissing the appellant's appeal from his conviction on a charge of assault causing bodily harm. Appeal allowed, Ritchie J. dissenting.

D. Owen-Flood and Mel Hunt, for the appellant.

W. G. Burke-Robertson, Q.C., for the respondent.

The judgment of Martland, Dickson, Beetz, Estey, McIntyre and Lamer JJ. was delivered by

ESTEY J.—I have had the opportunity of reading the judgment herein of my colleague, Ritchie J., and for reasons which I shall now advance I must, with all respect, come to the opposite conclusion; that is I would allow the appeal and direct a new trial. Because in my view a new trial should be the result of this appeal I will confine my observations to the two grounds which, in my respectful view, direct this disposition. Firstly, the learned trial judge failed entirely to take into account all the evidence which bore on the time period which the trial court found to be vital in this proceeding, and secondly, the proceedings at trial and on appeal have been completed without any reference to s. 25 of the Criminal Code which deals with the protection afforded by law of a peace officer such as the accused when acting "on reasonable and probable grounds" providing that in so doing such a person uses "as much force as is necessary".

[page 4]

I turn to the first ground. The learned trial judge, in his oral reasons, found that:

... the events immediately prior to that moment in time [that is the arrival of the second officer] are the significant events. What happened after that does not directly relate to the matter in issue.

The court then proceeded to examine the evidence, stating:

Considering those events, that is to say from the moment when Cst. Harper first spoke with Mr. Higginson up to the point when he, Cst. Harper and Cst. Ellis saw the missing tooth and the blood, I look at the evidence of the other witnesses and I have had an opportunity to go carefully through all of my notes, which I took in some detail, and I find that no other witness observed the events prior to the second officer appearing on the scene.

There were, as we shall see, four witnesses other than the informant, Higginson, and the Crown witness, Lindhout. The evidence of these witnesses was expressly not taken into account in the judgment process not because of rejection on the grounds of credibility but apparently because the learned judge had concluded that none of those four witnesses "observed the events prior to the second officer appearing on the scene". The judgment at trial then concluded:

So that none of them are of any assistance with regard to that exchange and it is clear that the injuries of which Mr. Higginson complains specially, that is, the injuries to his eye, his cheek and his tooth and mouth, took place prior to the second officer appearing. [My emphasis.]

Earlier in the judgment the trial judge specifically excluded the evidence of one witness, Mr. Dhaliwal, who clearly testified only to the events occurring after the second officer had arrived "which narrows us down to Miss Lindhout and Mr. Higginson". The question therefore is whether, by thus eliminating the evidence of the other four witnesses in this fashion, the trial judge has so misdirected himself as to the relevant evidence that the conviction cannot stand.

[page 5]

In order to resolve this question it is necessary to set out some of the evidence of the witnesses R. Harris, W. Harris, Jensen and Constable Ellis. First the evidence of R. Harris, called on behalf of the accused, who at the time in question was a passenger in his father's truck in the parking lot adjoining the service station where the events in question took place. In one of the exhibits the position of the witness with reference to the police car driven by the accused is illustrated and no obstruction between the truck and the parked police car is shown, nor is any mentioned in the evidence. The relevant excerpts from the evidence of R. Harris are as follows:

Q. And when you looked around, what did you see?

A. Just the police car there and the two people talking.

Q. There was a police car there and two people talking. Was one of the people talking, was one in uniform?

A. Yes.

Q. What uniform was he in?

A. Police uniform.

Q. And the man that the police officer was talking—could you recognize the police officer if you saw him again in civilian clothes? Could you recognize the policeman if you saw him again from his face?

A. I don't know.

Q. Is the police officer, is he—is there a man in Court with the same face as the police officer? Sitting in Court? Could you look around? Do you know?

A. Well, I know that was one of the police officers.

Q. Who?

A. That man over there.

Q. When you first saw the police car and the police officer in uniform and the man at the service station; how many policemen were there?

A. One.

Q. And you know the man over there was one of the two police officers?

A. He was the first one.

Q. He was the first one?

A. Yes.

Q. And what was that man over there doing with the other man at the service station? When there was only one police officer, what were they doing?

[page 6]

A. Sort of just struggling.

Q. The first time you saw them both, what were they doing?

A. It looked like they were just talking like.

Q. Yes. Now, tell us in your own words what you remember seeing, Randy. The first time you saw them, they were just talking. Now, I want you to tell His Honour everything in your own words. Just go on from there?

A. Well, we pulled around the back of the service station, onto the Dog House parking lot and they were starting to just struggle over something. I don't know. And a couple of minutes later another police car pulled up, across the road and into the front of the Shell Station. And then they struggled a little longer and then they both went down with the civilian and when they got back up, they had the handcuffs on him.

[…]

Q. And did you see any punches, or blows with fists, being thrown by any of the police officers?

A. No.

Q. Did you see any of the police officers kick this man?

A. No.

Q. When you saw there was—I think, Randy, you used the term "struggle". Your Honour .. .

THE COURT:

Yes.

MR. OWEN-FLOOD:

Q. When you used the word "struggle", can you describe the struggle? What sort of struggle was it?

A. Sort of like wrestling.

Q. Wrestling?

A. Sort of like.

Q. Any punching by anybody?

A. No.

Q. Were you interested—did you watch it the whole time, or did you take your eyes off it and look at other things?

A. I was watching it most of the time.

Q. About how far away were you and your dad from the struggle? You know how long a car is, Randy. I presume a car might be as long as this table. I am terrible . . .

[page 7]

A. About 75 feet.

Q. About 75 feet. Did you have any difficulty watching it? Was there anything to block or obstruct what you could see? In other words, was there anything which would cause you not to be able to see what was going on, some of the time?

A. The only part I missed was when they went down, because of the police car there.

Q. I see. You missed—when you say when they went down, you mean when they went down on the ground?

A. Yes.

Q. When I say the man, I don't mean either of the two police officers. I mean the man they were struggling with. Can you tell His Honour what that man seemed to be doing with the police officers?

A. Like, he was trying to get away.

Q. Now, how did the man and the two police officers end up on the ground? How did that happen? What did you see about that?

A. I'm not sure about that.

Q. I see. Were the police officers rough with the man?

A. No, not really.

[…]

Q. You say the man and the police officer, when you first saw them both, they were talking. Had you seen that man before that?

A. Yes.

Q. Tell us about that, please?

A. Urn. Can I show you on this picture?

Q. Yes, please. The picture that Randy has is Exhibit number .. .

A. I.

Q. ... number 1. Can you show us on the picture?

A. I was waiting over here, about and I saw the man walking behind the gas station over there.

Q. There is another gas station that looks like .. .

A. Esso.

Q. .. . Esso. Yes. You can see it in part of the picture. Yes.

A. I saw him walk around there and he had a little packsack on.

Q. Where did he walk to, Randy? From the Esso Station to where?

A. Just behind it.

[page 8]

Q. And where did you next see him?

A. After my dad directed my attention to there.

Q. And where was this struggle taking place? Could you point it out?

A. Right by the end of the police car.

[…]

CROSS-EXAMINATION

[…]

Q. All right. You said the man was trying to get away. Was he trying to run away across the parking lot?

A. No. He was throwing himself around, trying to get out of their hands.

Q. He didn't want to get in the car, from what you could see; is that right?

A. Yes.

Q. All right. And you were sitting in this parking lot, which you say was about 75 feet away?

A. Yes.

Q. You say there was nothing to obstruct your vision; is that right? Except the police car, itself?

A. Yes.

Q. But there is a fence, isn't there?

A. Yes.

Q. Between the Dog House and the Shell Service Station, of Scotch fir trees?

A. Yes.

Q. Was your truck above those fir trees, so you could see everything?

A. Yes.

Q. You say your dad directed your attention to this?

A. Yes.

Q. So obviously, I take it, you didn't notice, right at the outset, what was happening? You didn't see the police car arrive, for example?

A. No.

[…]

Q. You were watching the whole time. I put it to you, they were struggling when you first saw them, weren't they?

A. No.

Q. The policeman was holding the man, wasn't he?

A. I'm not sure.

[page 9]

Q. He may well have been holding that man and talking to him, wasn't he?

A. I don't know.

Q. The packsack was on the ground?

A. Yes.

Q. You never saw the packsack on the boy's back, did you?

A. Never .. .

Q. Except earlier .. .

MR. OWEN-FLOOD:

My friend interrupted.

MR. TAYLOR:

Q. Except when you saw him earlier on at the Esso station?

A. Yes.

Q. You never saw the boy with the packsack on his back, did you?

A. No.

[…]

Q. When you were sitting in your father's truck. Okay?

A. Yes.

Q. Were you looking right at the back of the policemen, or were you looking at the back of the police car or were you looking at the side of it?

A. Sort of like an angle.

[…]

Q. Did you say that you saw no punches being made by anyone?

A. Pardon me?

Q. You say that you saw no punches being thrown or made by anyone?

A. Yes.

Q. Are you saying there were no punches, or you saw no punches?

A. There was no punches.

Q. You are quite sure of that?

A. Yes.

Q. By anyone, including the boy?

A. I saw no punches.

The next witness is the father of R. Harris, that is W. Harris, who testified as follows:

Q. What did you see?

[page 10]

A. I was going—approaching the highway and there was a police car and officer and a civilian standing outside a pay booth at the gas station.

[…]

Q. What did you see?

A. At the time there was just one police car there and I noticed an officer and one, as I say, civilian standing there.

Q. What were they doing?

A. At that time they were, just appeared to be talking.

Q. Where was the officer in regard to the civilian?

A. Standing, facing like each other.

[…]

Q. You saw something might be happening and you picked up Randy and you drove to the Dog House parking lot. Did you at all look back at the service station?

A. When I was going to get Randy?

Q. Yes.

A. Yes. I was watching it all the time.

Q. What did you see?

A. Until Randy—well, actually until we got right back around to the Dog House, they were just standing there talking.

The witness Jensen, called by the accused, was a security guard who at the time in question was parked in his radio equipped automobile in a parking lot across the highway from the Shell station. An exhibit filed at trial indicates the Jensen automobile was directly across the street from the police car driven by the accused and no obstruction between the two vehicles is indicated. Jensen was on duty as a security guard at the time and his testimony was as follows:

Q. Yes. Continue in your own words?

A. I was checking this business along here with my vehicle and I noticed a police vehicle in the Shell gas station at the gas pumps. The officer seemed to be having a talk with one person, one male person on the sidewalk of the gas station. I continued to watch. It appeared as if the officer was

[page 11]

attempting to get this person into his car, in the police vehicle.

Q. I am sorry, When you first saw the officer and you said he appeared to be having a talk with another person, who I will henceforth refer to as a civilian; what were the respective positions? Were they touching each other?

A. To the best of my knowledge it was—it appeared to be a normal conversation at that time. They were standing face to face with each other.

Q. Yes. And what happened then?

A. It appeared as if the officer was attempting to get the person into his police car or .. .

Q. What did you see the officer do and what did you see the civilian do?

A. The officer and the civilian appeared to be grabbing each other by the arms. You know, struggling with each other, grabbing and clutching.

Q. Yes. Continue. Just tell us what happened?

A. At this point I felt that the officer was probably going to require assistance in retaining this person.

Q. What made you reach the conclusion that the officer might require assistance?

A. It appeared that he was having difficulty in containing this person.

Q. What did you see? What was the person doing?

A. The person appeared to be trying to get away from the officer. That is the impression I got.

Q. Yes?

A. So I radio-telephoned from my car the Duncan detachment of the R.C.M.P. and advised them it appeared an officer of their force was having a problem at the Shell Gas Station.

Q. Yes?

A. At the same time I was talking to the dispatcher, another police vehicle from Duncan pulled into the gas station.

[…]

Q. You were watching this for approximately how long, in terns of minutes?

A. It would be about four or five minutes, approximately. It is quite some time ago.

Q. Did you watch it intermittently or continuously, or what?

A. Continuously.

[page 12]

Q. You were how many feet away from this incident, approximately?

A. It would be about 100 feet, 120 feet.

Q. Were there any punches or blows thrown by either of the police? Either one or both of the police officers or by the civilian?

A. I did not notice any.

The other policeman, Constable Ellis, testified as to what he saw going on at the gas station at the time of his arrival:

Q. And when you saw Constable Harper's car, how far away would you have been?

A. Oh, probably a couple hundred feet.

Q. What if anything did you see apart from the car?

A. At that time I saw Constable Harper talking to an unidentified male on the opposite side of the car between the car and the self-serve station.

Q. Did you continue to keep them under observation while you were at that red light?

A. Not at that particular moment, as the light turned green I observed it, Constable Harper was in somewhat of a scuffle with that individual.

Q. Approximately how long would it have been between when you first saw him and then when you then saw again that there was some sort of a scuffle going on?

A. Ten to 30 seconds, approximately.

[…]

Q. At that point you got there and stopped, what did you see?

A. As I pulled in, I saw Constable Harper engaged in a scuffle with this individual at the rear door of his police vehicle.

Q. Can you describe this scuffle?

A. He had this gentleman pinned up between him and the entrance to the door. The rear door of the police vehicle, Constable Harper's door was open.

Q. How was this person pinned?

A. He had him between himself and the door, holding him.

Q. Yes?

A. To stop him from moving.

Q. How was he holding him?

A. I believe in an arm lock, if I remember correctly, but I'm not positive.

[page 13]

Later in his testimony, under cross-examination, Constable Ellis stated:

Q. And the first time that you saw .. . you saw anything, Constable Harper was in the Shell Service Station simply talking to Higginson. There was no fighting or any scuffling going on.

A. When I first saw him, that is correct.

Q. And so you paid no particular attention, you didn't think there was any particular disturbance; isn't that right?

A. That's correct.

Q. And then the next time you looked around you could see that Constable Harper .. . that there was a scuffle going on with Constable Harper trying to restrain Higginson.

A. That is correct.

Q. And you then thought that it looked as if Harper needed assistance; isn't that correct?

A. That's correct.

Q. And then you went to the police station for the purpose of assisting Constable Harper; isn't that correct?

A. To the Shell Self-Serve.

Q. Sorry, the service station, yes. And when you got there, Constable Harper had Higginson pinned up against the rear of the car, the police car; isn't that correct?

A. That's correct.

Q. Higginson appeared to be struggling with all his might; isn't that correct?

A. That is correct.

Q. And you heard Constable Harper tell Higginson that he was under arrest for being drunk in a public place.

[…]

Q. ... did you at any time see Constable Harper punch or hit Higginson?

A. No, I did not.

There is no question that at the time of these events the informant Higginson was under the influence of alcohol. The Shell employee Lindhout, who was in the booth at the gas station, testified that the informant Higginson arrived at the gas station on foot and in the course of conversation with the witness asked if he could have a car wash.

[page 14]

She testified that his words were a bit blurred. She then testified "I assumed he was a little drunk" when she let him into the Shell booth.

An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. This problem was before this Court in MacDonald v. The Queen, [1977] 2 S.C.R. 665, when Laskin C.J. stated, at p. 673:

It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equally unchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict. Where some reasons are given and there is an omission to deal with a relevant issue or to indicate an awareness of evidence that could affect the verdict, it may be easier for an appellate Court or for this Court to conclude that reversible error was committed: see R. v. Bush, [1939] 1 W.W.R. 42, at p. 44; Ungaro v. R., [1950] S.C.R. 430; Horsburgh v. R., [1967] S.C.R. 746; Kolnberger v. R., [1969] S.C.R. 213.

The reference to Ungaro above no doubt includes the following (at pp. 437-38):

It is unnecessary to here resolve this conflict as the authorities are unanimous that where the misdirection is "manifest" or the assigned reasons disclose self-misdirection the conviction cannot stand.

[…]

In his reasons, with great respect, the learned trial judge discloses that he had misdirected himself with

[page 15]

respect to the relevancy of the denial and given to it an importance in relation to the main issue not justified upon the authorities. Moreover, a reading of the reasons as a whole suggests that he did not direct himself as to the explanation of the source of the goods in relation to the evidence as required in Richier v. The King, [1939] S.C.R. 101. There is at least "reason to doubt that he properly charged himself when forming his conclusions upon the evidence" as stated by Chief Justice Moss in Rex v. Frank (1910) 16 C.C.C. 237, which, with respect would appear to be an accurate statement of the limitation in respect to the presumption upon which Rex v. Bush, supra, was decided.

and again at p. 432 per Rinfret C.J.:

I do not mean that a trial judge is obliged in his judgment to give all the reasons which lead him to the conclusion that an accused is guilty. Undoubtedly if he finds one valid reason why he should reach that conclusion it is not necessary that he should also give other reasons. It is imperative, however, that he should give a decision upon all the points raised by the defence which might be of a nature to bring about the acquittal of the accused. In the present case, disearding, as he did, as "fantastic", the explanation of Ungaro's denial to the police was insufficient to find the accused guilty. It was much more important that the trial judge should have addressed himself to the main point in the accused's defence, and which was the explanation of the circumstances which accompanied the purchase from Seguin, the thief, of the goods stolen. As to that the learned trial judge said absolutely nothing in his reasons, and, reading them, a Court of Appeal is perfectly justified in holding that he completely overlooked this point.

This issue was apparently raised in the Court of Appeal but, in the reasons for judgment of Craig J.A., it seems to have been disposed of on the basis that the trial judge determined the point on the basis of credibility, rather than on whether the effect of the trial judge's reasoning leading to conviction was the wrongful exclusion from his consideration of the evidence of four witnesses bearing on the issue which the trial judge himself had found to be the vital one. Lambert J.A. acknowledged:

If the trial judge completely overlooked part of the evidence of four witnesses that related to events occurring before the second police vehicle came to a stop at

[page 16]

the gas station, then, in my opinion, there would in this case have been a miscarriage of justice and the appeal ought to be allowed.

The learned justice then formed the opinion that the trial judge did not wholly overlook this evidence. This opinion was apparently reached on the basis of a later reference in the trial judgment to the "exchange" between the accused and the informant Higginson and that this term should be taken as meaning the narrow time period between the confrontation of the police officer and the person being arrested and the time that the punches were allegedly delivered. I must respectfully disagree with the application of such fine reasoning to explanatory reasons given in a criminal court for the conviction of an accused. Lambert J.A. expressed something of this same thought when later the learned justice states:

I would add also that there is, to my mind, considerable ambiguity as to what is meant by the words "prior to the second officer appearing on the scene".

It was argued by the appellant before us that such ambiguity, particularly in criminal proceedings, should be resolved in favour of the accused. I do not think that this is a situation of ambiguity in the sense of equivocal meanings of expressions found in penal statutes. What we are here concerned with is whether or not the trial court, in assessing the evidence in the course of finding guilt on the part of the accused, has fatally overlooked relevant evidence submitted to the court on the very issue which must be determined.

The trial judge in his report to the Court of Appeal under s. 609(1) of the Criminal Code stated:

In short, I considered the only issue before me to be one of credibility .. .

Craig J.A., in the Court of Appeal, adverted to this ground of appeal when he stated:

Mr. Owen-Flood [counsel for the accused] submitted that four witnesses for the defence did, in fact, give testimony about what they saw happening at the service station between Higginson and Constable Harper before the arrival of Ellis and that, therefore, the judge erred in not considering this testimony when considering particularly

[page 17]

whether he should find Miss Lindhout and Mr. Higginson to be credible witnesses, as he in fact found.

Mr. Owen-Flood submitted to this Court that his point had not been correctly taken by the Court of Appeal. The submission with reference to the evidence of the four witnesses was made not with reference to the issue of credibility, with which the trial judge was so much concerned, but on the issue that by the wrongful exclusion of this evidence from the judgment process the trial court had misdirected itself, a misdirection which if given to a jury would have been fatal to a fair trial.

The learned justice on appeal then concluded:

On this basis, the trial judge could very well in reviewing the evidence and his notes conclude, as he did conclude, that their testimony on this particular point was not helpful.

But the trial judge did not conclude the evidence in question was "not helpful". Rather he found:

(a) ". . . no other witness observed the events prior to the second officer appearing on the scene";

(b) "... none of them are of any assistance with regard to that exchange . . . "; and

(c) ". . . which narrows us down to Miss Lindhout and Mr. Higginson".

Lambert J.A., as I have said, addressed this ground of appeal directly. He concluded, by attributing a narrow meaning to the reference by the trial judge to "an exchange" between the informant and the accused, that the trial judge had in fact considered the evidence of all the witnesses before reducing his consideration of the relevant evidence (in his view) to that of Higginson and Lindhout. The words used by the trial judge in giving his reasons for the conviction of the accused do not, however, lend themselves, in my respectful view, to such a fine and narrow interpretation. Whether such a process of interpretation should be applied in determining the propriety of a self-direction in a criminal trial is another aspect which need not be determined here. In my view it is sufficient for the purposes of this appeal to apply

[page 18]

the principle that the reviewing tribunal must be satisfied as I am, with all respect to others who do not agree, that the judge at trial wrongly failed to consider evidence which did bear directly on the issue of guilt or innocence. Such being the case, in my view the proper procedure in this proceeding is an order directing a new trial.

A second element of law arose in the course of the hearing of this appeal before this Court when my colleague Lamer J. enquired of both counsel as to whether s. 25(1) of the Criminal Code had been raised in the courts below. It had not.

Section 25(1) provides 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 and probable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

The accused here was admittedly a peace officer. He was at the time in question in the act of arresting the informant for drunkenness. The evidence of the Crown witness Lindhout was that the informant was intoxicated. The trial judge found the informant "had been drinking in the evening in question". That a peace officer is justified in arresting a person for being intoxicated in a public place contrary to a provincial statute, if the peace officer reasonably believes such person is intoxicated, has long been settled. In the course of so acting the peace officer has been provided with a defence in law not available to persons who do not come within s. 25. The trial court was not directed to the defence of the use of 'as much force as is necessary for that purpose' and hence no consideration of the evidence on this point was undertaken at trial. The

[page 19]

same applies to the deliberations of the Court of Appeal. There are other matters to be taken into account once s. 25 is invoked but believing as I do that a new trial is the proper disposition here, nothing further should be said which might have the effect of prejudging this or any other issue raised on this appeal.

I would therefore allow the appeal, set aside the order of the Court of Appeal and order a new trial.

The following are the reasons delivered by

RITCHIE J. (dissenting)—T his is an appeal brought pursuant to leave granted by this Court in conformity with the provisions of s. 618(1)(b) of the Criminal Code which reads as follows:

618. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

[…]

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada within twenty-one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.

The appeal is from the unanimous judgment of the Court of Appeal of British Columbia which dismissed an appeal from the judgment of judge Millward convicting the appellant, a police officer, on a charge of assault causing bodily harm. The evidence discloses that after dark on an evening in February 1978, a young man by the name of Higginson who at the time had consumed something in excess of the amount of alcohol appropriate to his capacity, had decided to hitchhike from the City of Duncan on Vancouver Island to Victoria. For this purpose he was equipped with a packsack and before embarking on his hike he stopped at a food store where he purchased some chicken to sustain himself. Having acquired the chicken he took it to a self-serve gas station which was usually staffed by a girlfriend of his. On the night in question, however, another girl named Lindhout was on duty; she was a stranger to

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Higginson but nevertheless invited him into the booth where she worked so that he might have shelter while eating his chicken. Shortly after he had entered the booth a police car, operated by the appellant, Harper, drove into the service station and signalled for Higginson to come over to him and when the young man came out of the booth he was asked to take off the packsack he was wearing and there seems to be no doubt that he did this without too much trouble after Harper had got out of his car. It is also common ground that within a very few minutes another police car, operated by Constable Ellis, appeared on the scene and that he dismounted from his car and proceeded to assist Harper in subduing Higginson so as to get him into the police car for transfer to the police station, as he had by this time been placed under arrest by Harper for drunkenness.

It is during the very brief period from the time that Higginson removed his packsack until the time when Constable Ellis arrived that the offence here charged was allegedly committed. As to this period there is direct conflict with Higginson saying that after he had removed his packsack and asked why he should get into the police car, Harper ". .. never said anything or nothing, he just punched me in the mouth and it knocked out my front tooth". Miss Lindhout swore that she saw these blows being delivered from a distance of 4 or 5 feet. On the other hand, Harper stoutly denied having delivered any blow. The learned trial judge believed the Crown witnesses and found Harper's story unworthy of belief.

As the facts were carefully reviewed by the trial judge and as his findings were expressly affirmed by the Court of Appeal, I think it most convenient to reproduce his account of what occurred. Starting with a review of Miss Lindhout's evidence, the learned judge went on to say:

Miss Lindhout testified that she was working at the Gulf Self-Serve that evening as cashier. She described the view of the area that she had from her booth and said that around 9:00 or 9;30 that evening she saw Mr. Higginson. She had not seen him before. She saw him crossing Trunk Road with his packsack and a little black suitcase and with chicken and some salad.

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She spoke with him briefly. She said 'I assumed he was a little drunk when he asked for a car wash because he didn't have a car'. She said his walk was all right. They had a discussion and after about five minutes, the police car drove in.

She says the police car drove to a position in front of the cash booth. Cst. Harper motioned with his finger to Higginson to come out, Higginson said, 'I guess I'd better go'. He went out and he spoke with Cst. Harper. The two spoke briefly, the accused, Cst. Harper, was in the car, Mr. Higginson was facing him.

Cst. Harper got out of the car, the boy turned and motioned towards his pack. Cst. Harper helped him remove the pack, the black case was on the ground. Higginson turned around and the accused started to hit him in the face. She saw no prior violence.

Mr. Higginson stepped back a bit, the young lady said, 'After I seen him get hit a couple of times in the face, I got up and went out. I said, 'What are you doing. He may have had a couple of drinks but that's no reason to hit him like that'. Cst. Harper responded, 'Get inside where you're supposed to be'.

She said, 'What is your badge number?' Cst. Harper said, 'If you don't get inside, I'll arrest you for obstructing an officer in the line of duty'. She went inside and the other police car drove up.

She insisted that Mr. Higginson did not offer any violence to anyone. When the other officer approached, the young lady went outside again to talk to the boy and she saw that Higginson's face was bleeding and his tooth was missing.

In cross-examination she said after the backpack had been removed, the boy turned to face the accused and she saw the policeman hit the boy in the face with his clenched fist. She was quite definite about this. She said, 'I seen him hit him in the face'.

She was asked, 'Have you any doubt about it'?' and replied, 'None'.

When referred to her testimony in the preliminary inquiry, she said that since then she had had time to think things over and she is very sure the boy was hit in the face. She was about four or five feet away from the participants when she witnessed these events.

Now, Cst. Harper says, in effect, that for reasons that he explained, he felt it incumbent upon him to investigate

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the circumstances of Mr. Higginson and he looked for him and he found him in the Shell booth. He gestured to Higginson to come out; Higginson picked up his horn case, he had a bag of chicken in his hand, he set the case down and leaned over to speak with Cst. Harper.

There was a discussion, the constable decided that Mr. Higginson was drunk and that he should not be on the highway for his own safety and he told Mr. Higginson that he was arrested, being arrested for being drunk in a public place and he described the further conversation and his attempts to put Mr. Higginson in the car, and the difficulties he had in doing so.

Cst. Ellis drove up, the young lady came out and said, 'Why are you hitting him?' He said, 'Go back or I'll charge you . . . ' and so on. Cst. Ellis asked what was going on, Cst. Harper said, 'I'm trying to get this fellow into the car', whereupon Higginson turned his face around and it was apparent that he, Higginson, at that point in time had a tooth missing and had blood on his lip.

Now, in my view, the events immediately prior to that moment in time are the significant events. What happened after that does not directly relate to the matter in issue. I heard a good deal of evidence as to the conduct of Mr. Higginson after that time and it is very likely that he was the author of some of his own injuries from then on.

Considering those events, that is to say from the moment when Cst. Harper first spoke with Mr. Higginson up to the point when he, Cst. Harper and Cst. Ellis saw the missing tooth and the blood, I look at the evidence of the other witnesses and I have had an opportunity to go carefully through all of my notes, which I took in some detail, and I find that no other witness observed the events prior to the second officer appearing on the scene. So that none of them are of any assistance with regard to that exchange and it is clear that the injuries of which Mr. Higginson complains specifically, that is, the injuries to his eye, his cheek and his tooth and mouth, took place prior to the second officer appearing.

So what we have is a situation where Higginson suffered those injuries in a' span of a minute or two or three while he was confronting Cst. Harper. Cst. Harper says he does not know how the injuries took place, he can only offer the hypothesis that they were accidental and that Higginson's face came into contact with some' part of the police car because of the struggle.

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On the other side of the picture, the Crown witness Dhaliwal positively states that he saw two officers striking the victim. I do not think Mr. Dhaliwal's evidence is particularly helpful in view of the finding that I have made that the significant injuries took place prior to the second officer coming on the scene, which narrows us down to Miss Lindhout and Mr. Higginson.

I observed Miss Lindhout with great care and in my opinion, she gave her evidence with a sincere desire to describe the events precisely as they took place. Undoubtedly, she cannot remember every detail and undoubtedly some of the sequence of events may disagree with other witnesses but I am satisfied beyond any shadow of a doubt that she told the story as she saw it.

1 am satisfied that she described Cst. Harper striking Mr. Higginson, honestly, and I accept her evidence. I find that Cst. Harper's denial is not credible, that notwithstanding the evidence of good character, all of which 1 accept, 1 am unable to accept his statement that he did not strike Mr. Higginson and find it a fact that he did assault Mr. Higginson as charged by striking him with his fist in the face more than once; that he had no justification for doing so and that by so striking him, he caused bodily harm. And as a result, I find Cst. Harper guilty as charged.

(The italics are my own.)

Appeals such as the present one brought pursuant to s. 618(1)(b) are limited to questions of law and it has repeatedly been held in this Court that where a "question of law" is referred to, it carries the meaning of law in the strict sense so that questions concerning a difference of opinion as to the sufficiency of the evidence are not included. In this regard reference may be had to the reasons for judgment of Chief Justice Anglin in Gauthier v. The King, [1931] S.C.R. 416, where he said of such an appeal as the present one [at p. 417]:

Assuming that the question, whether there was any evidence to support a conviction, should be deemed a question of law, the question whether the proper inference has been drawn by the trial judge from facts established in evidence, is really not a question of law,

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but purely a question of fact for his consideration.

The facts as found by the learned trial judge in the present case were expressly adopted by the Court of Appeal and the questions of law advanced on behalf of the appellant as justification in the present appeal are the following:

1. Whether the Court of Appeal for British Columbia erred in law in concluding that the Learned Trial Judge had properly directed himself on all relevant, admissible evidence, when the Reasons for Judgment of the Learned Trial Judge disclose a failure to consider relevant, admissible evidence.

2. Whether the Court of Appeal for British Columbia erred, when having found ambiguity in the Reasons for Judgment of the Learned Trial Judge, in not giving the benefit of that ambiguity to the Appellant.

3. Whether the Court of Appeal for British Columbia erred in law in concluding that as long as there was some evidence upon which the Learned Trial Judge could have convicted, it should not and could not interfere with the verdict, even where the Reasons for Judgment of the Learned Trial judge in convicting expressly disclosed a failure to consider relevant, admissible evidence at trial.

Three judges (Craig, Lambert and MacDonald JJ.A.) sat on the appeal but only Craig and Lambert delivered reasons for judgment whereas MacDonald J.A. limited himself to a concurrence. All the judgments were oral, and in the result were unanimous in dismissing the appeal.

It appears to me to be desirable to deal with the second issue raised by the appellant and in this regard it should be pointed out that there was no finding of the Court of Appeal for British Columbia as to ambiguity in the reasons for judgment of the learned trial judge. The only mention of ambiguity is to be found in the reasons for judgment of Mr. Justice Lambert where he says:

I would add also that there is, to my mind, considerable ambiguity as to what is meant by the words "prior to the second officer appearing on the scene".

When reference is had to the above quoted excerpt from the reasons for judgment of the learned trial judge it will be apparent that he considered the

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events of the evening to be divided between the period prior to the appearance of the second officer and the events which occurred after his arrival. The trial judge said of the witnesses who did not observe the prior events:

So that none of them are of any assistance with regard to that exchange and it is clear that the injuries of which Mr. Higginson complains specifically, that is, the injuries to his eye, his cheek and his tooth and mouth, took place prior to the second officer appearing.

In any event, Mr. Justice Lambert's use of the word "ambiguity" in his reasons for judgment is qualified by the second to last paragraph where he says:

... it is my opinion that any ambiguity about the disputed sentence in the reasons for judgment of the trial judge can be resolved by reference to the remainder of his judgment and the evidence that was before him.

When the reasons for judgment of the Court of Appeal are read as a whole, it will be seen that there is no finding of ambiguity in the reasons for judgment of the trial judge. As to the first and third issues raised as questions of law by the appellant, it will be observed that they are both predicated on the suggestion that the learned trial judge failed to consider the relevant admissible evidence. This appears to be based on the assumption that four of the witnesses for the appellant gave evidence which was relevant to the issue and which was completely ignored by the trial judge. The fact of the matter is, however, that none of these witnesses purported to have observed the actions of Harper and Higginson during the vital period before the arrival of Constable Ellis, which is the time when the assault is alleged to have taken place. It is furthermore of significance that although the appellant describes the witnesses called on his behalf as having testified in direct contradiction to the evidence of Lindhout and Higginson, they were actually unable to go any further than to assert that they had seen no blows delivered by Harper and none of them was able to say that no blows had been delivered at the time of which Higginson complains.

It is apparent from a review of the reasons for judgment at trial and those of the Court of Appeal

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that any differences between the judgment and the allegations of the appellant before this Court are based upon the trial judge's assessment of the credibility of the witnesses. What we have here is a case of concurrent findings of fact based upon the trial judge's assessment of the witnesses and it has long been recognized in this Court that it is only in the rarest of cases that we will accept the responsibility as a second court of appeal of reversing such findings.

In the case of R. v. Warner, [1961] S.C.R. 144, the appellate division of the Supreme Court of Alberta allowed the appeal in part on the first ground that in its opinion

.. the verdict of guilty of murder should be set aside on the ground that it could not be supported by the evidence, .. .

As to this finding, Mr. Justice Cartwright, speaking for the majority of the Court, stated that:

So far as the judgment of the Appellate Division is based on the first ground mentioned, this Court is powerless to interfere with it. The question whether the Appellate Division was right in proceeding on this ground is not a question of law in the strict sense. It is a question of fact or, at the best from the point of view of the appellant, a mixed question of fact and law.

The position of an appellate court in such circumstances as those here disclosed is most dramatically described by Lord Shaw in Clarke v. Edinburgh and District Tramways Co., Ltd., [1919] S.C. (H.L) 35, at p. 37:

In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I—who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case—in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.

Having regard to all the above and with the greatest respect for those who may entertain a different view, I would dismiss this appeal.

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Appeal allowed, RITCHIE J. dissenting.

Solicitors for the appellant: Owen-Flood, Turnham, Green & Higinbotham, Victoria.

Solicitor for the respondent: The Attorney General of British Columbia, Nanaimo.