CASE SUMMARY- TREVOR LINDSAY V. HIS MAJESTY THE KING

At what point should a police officer lose the protection offered by section 25 of the Criminal Code, justifying the use of as much force as necessary, so long as the officer acted on reasonable grounds and used that force for something the officer was required or authorized to do?

This appeal comes to the Supreme Court of Canada as of right from the Court of Appeal of Alberta. Officer Lindsay was charged with aggravated assault against an individual in his custody following an incident, much of which was captured on video. Following a brief interaction with the prisoner, Officer Lindsay was seen punching him in the face and, after another interaction, three more times to the back of the head. The most significant injury, a skull fracture, occurred when, during the course of either throwing the man to the ground or, as the officer testified, lowering him to the ground, the man’s head hit the pavement. 

The officer explained that he was concerned initially that the prisoner, whom he had been advised was an intravenous drug user with a history of being aggressive to police, might have a serious infectious disease such as hepatitis C, which could pose a risk should he spit at him or his partner in the cruiser. This concern grew after the first blow, which bloodied the man’s nose, after which he spit some blood at the cruiser.

The officer went on to explain that he meant to lower the man to the ground by the collar of his hoodie but inadvertently got hold of the hood. The slack between the hood and the collar resulted in his not being able to lower him in the controlled fashion he meant to employ, and the resultant contact led to injuries sufficiently serious that defence counsel conceded they were enough to constitute aggravated assault, should the judge conclude that an assault had, in fact occurred.

The trial judge found that there were no reasonable grounds for the first strike as there was no objective basis for any fear. The force used thereafter was excessive.

The majority of the Court of Appeal found no error in the trial judge’s finding that neither section 25 nor section 34 were of assistance to the officer. Wakeling, J.A., in dissent, felt that the trial judge ought to have considered several key questions, including whether a reasonable person with the officer’s training would have considered the assessment of risk reasonable; whether the officer felt the force used was no more than necessary; whether a reasonable person with the officer’s training would have considered that the belief in the need for force and the use of no more force than necessary was reasonable; and whether the harm likely to result to the officer if less force was used should be considered in the context of the degree of harm the detainee might suffer with the use of force chosen.

In particular, he emphasized the need for the trial judge to consider what act(s), in particular, constituted the offence here, as it was essentially the act of putting the man to the ground which resulted in the significant head injury, and what level of intention would have to be proven with respect to the harm which resulted from that conduct.

In today’s society, the use of force by police has been the subject of considerable scrutiny, whether in Canada or elsewhere. The Supreme Court is in a position to provide important clarification on the extent to which such use of force may be justified, such that a criminal conviction ought not to result therefrom.