man shot by police loses appeal

7/29/2019 Man Shot by Police Loses Appeal

1/27

In the Court of Appeal of Alberta

Citation: R v Davis, 2013 ABCA 15

Date: 20130124

Docket: 1103-0114-ARegistry: Edmonton

Between:

Her Majesty the Queen

Respondent

- and -

Percy Walter Davis

Appellant

_______________________________________________________

The Court:

The Honourable Chief Justice Catherine Fraser

The Honourable Mr. Justice Clifton OBrienThe Honourable Mr. Justice J.D. Bruce McDonald

_______________________________________________________

Memorandum of Judgment of

The Honourable Mr. Justice OBrien and

The Honourable Mr. Justice McDonald

Dissenting Memorandum of Judgment of

The Honourable Chief Justice Fraser

Appeal from the Conviction by

The Honourable Madam Justice M.G. CrightonDated the 11 day of April, 2011th

(Docket: 081329385Q1)


2/27

_______________________________________________________

Memorandum of Judgment

_______________________________________________________

The Majority:

I. Introduction

[1] The appellant, Percy Walter Davis, was shot in the chest and neck during a confrontation

with a police officer outside an Edmonton shopping mall. Davis was later charged and convicted of

possession of a weapon (a knife) for a dangerous purpose, assault of a police officer in the execution

of duty, and assault of the same officer with a weapon. He appeals these convictions and seeks a newtrial. He submits the trial judge erred by giving insufficient reasons and by failing to find that his

Charterrights were breached by the use of excessive force in effecting his arrest. For the reasons

that follow, we dismiss the appeal.

II. Background[2] The trial extended over several days and more than 20 witnesses were called. Some of thefacts were contested at trial. Relying primarily on the evidence of Cst. Myles Stromner, the officer

who shot the appellant, the trial judge found as follows.

[3] On August 8, 2008 the Edmonton Police Service received a report that a person armed with

a butcher knife was riding a bicycle around the parking lot of the Abbotsfield Mall in Edmonton.

Cst. Stromner was dispatched to investigate.

[4] Stromner attended the mall and drove around the parking lot looking for the individual with

the knife. Along the way he spoke to two people, Barry Andrews and Jill Thomas, asking if they had

seen the person he was looking for. Both later gave evidence at the trial.

[5] As he was about to give up the search, Stromner saw a young man riding a bike who matched

the description Stromner had been given. This was the appellant. Stromner followed behind him inhis police car as Davis headed down 119 Avenue NW on his bicycle.th

[6] Near the end of the street, Stromner sounded his air horn twice and activated the police cars

emergency lights, but before he could get out of the car Davis charged the police car with a knifein his hand.

[7] The drivers side window of the police car was open. Seeing the knife, and believing hemight be stabbed, Stromner covered his head and leaned towards the passenger side of the vehicle.

As a consequence he did not see what Davis did with the knife. When the stabbing did not occur,

Stromner un-holstered his revolver, unbuckled his seatbelt, and attempted to get out the drivers sidedoor. He met brief resistence, as Davis pushed back, but Davis quickly relented and Stromner was

able to open the door and get out. As he did so, he observed Davis forward of the door holding a

knife over his head. In finding the attack occurred, as alleged by Stromner, the trial judge noted thatStromners evidence was confirmed by an eyewitness.


3/27

Page: 2

[8] Once out of the police car, Stromner told Davis to back up and drop the knife. Stromner then

gave a 10-13 emergency signal over the radio, an indication that an officer is in distress and needshelp immediately.

[9] Davis picked up his bike and walked away. Stromner, with revolver drawn, followed Davis

and shouted at him many times to drop the knife. Davis continued to walk away. At some point

Davis turned to face Stromner and Stromner pepper sprayed him in the face. Stromner perceived thepepper spray to have no effect. The trial judge noted that other witnesses made the same observation.

[10] Davis continued to walk away, with Stromner following, revolver pointing at eye level,demanding that Davis drop the knife. At this point, Stromner updated his status over the police radio

by downgrading the alert to a 10-17, an indication that an officer needs help but not as immediately

as with a 10-13 alert. He continued to follow Davis, from a short distance, repeating the commandthat he drop the knife.

[11] Davis was proceeding down the east side of Abbotsfield Road NW when he decided to cross

the road near the McDonalds parking lot located on the west side of the street. McDonalds is inthe southeast corner of the Abbotsfield Mall. Stromner advised police dispatch that he needed a taser

as Davis was moving in the direction of the Mall where Stromner had earlier observed that people

were present. Stromner followed Davis over the median to the parking area at the back ofMcDonalds.

[12] Stromner was concerned by this point that they would soon reach a populated area, wherehis options in stopping Davis would be limited. Stromner had already determined that he would not

let Davis get near people while still in possession of the knife. When it became apparent that Davis

was not willing to drop the knife, Stromner decided to shoot. Davis turned to face him and raisedthe knife in the air. At this point, Stromner shot Davis twice in quick succession, once to the right

of the appellants Adams apple, and once in the right chest.

[13] Two other police officers arrived at the moment of the shooting Cst. Griffith in a policecruiser and Cst. Leblanc on foot. Davis remained standing. Leblanc gave a verbal direction to Davis

to get down. After a few moments, Davis dropped the knife and toppled over onto his back.

[14] Davis was taken to hospital for treatment. His injuries were life-threatening. He was later

charged with the offences described above. The Alberta Serious Incident Response Team (ASIRT)

conducted an investigation into the incident and exonerated Stromner.

III. The Trial Decision

[15] The trial judge made an initial assessment of the credibility of two witnesses a civilian

witness, Mike Abdullah, and Stromner. Abdullahs evidence set him apart from the other civilianwitnesses because he had testified, among other things, that a second police officer, Cst. Griffith,

was at the scene at the time of the shooting. Davis did not testify at the trial.


4/27

Page: 3

[16] The trial judge found Abdullah was a witness hostile to both the defence and the Crown, and

that his evidence was not objective. She concluded that his suggestion that Cst. Griffith hadappeared prior to the shooting was contradicted by the evidence of all the other witnesses. As forStromner, the trial judge found him forthright, fair, and a credible witness, and she accepted his

version of events concerning his confrontation with the appellant, noting that in various instances

it was confirmed by other witnesses.

[17] After reciting the facts, the trial judge turned to the three charges. She looked first at the

charge under section 88(1) of the Criminal Code of possessing a knife for a purpose dangerous to

the public peace. She rejected the idea that the knife was being used in self-defence to thwart anunlawful detention, and found that Davis actions in charging the police car with the knife in hand,

refusing to drop the knife after repeated requests, and waving the knife around, occasionally making

forward thrusting motions, indicated an intention to use the knife for a dangerous purpose. Althoughsome witnesses testified that Davis was acting strangely, and there was some suggestion that he was

cognitively impaired, no expert evidence was called so as to displace the usual presumption that he

intended the reasonable and probable consequences of his acts. She found Davis had committed the

offence charged in count 1.

[18] She turned to the charge of assaulting a police officer engaged in the execution of duty under

section 270(1)(a). She found that in charging the police cruiser with a butcher knife in his hand, ata time when the officer inside was actively searching for a man with a knife in response to an

expressed public concern, Davis had committed an assault against a police officer while he was

engaged in the execution of duty. She found it did not matter that Stromner did not believe that acrime had been committed at the time. It was sufficient that he was lawfully making a general

inquiry to determine if Davis possession of the knife constituted a threat to the public. Thus, she

found the appellant had committed the offence charged in count 2.

[19] The remaining charge was committing an assault against a police officer while using, or

threatening to use, a weapon in this case, a knife contrary to section 267(b) of the Code. The trial

judge observed that she had already found the appellant had committed the assault, with the resultthat the only remaining question was whether he used the knife to effect this purpose. She

concluded:

I agree with the Crown that Mr. Davis, in committing the assault

threatened Constable Stromner first by charging the police cruiser

with a knife in his hand, and thereafter, by presenting it above hishead and waving it around as Constable Stromner tried to lawfully

disarm him. I agree with the Crown that Mr. Davis brandishing of

his knife was an implied threat, as there was no other evidentiary

purpose for displaying the knife in the manner that he did.[ARD 000009]

[20] Thus, she found that the third charge had been made out.


5/27

Page: 4

[21] At this point, the trial judge turned to defence allegations that Davis rights under sections7, 9, 10(a), 11(d) and 12 of the Charter of Rights and Freedoms had been abrogated. The parties hadagreed that these issues could be dealt with in the course of the trial rather than through a voir dire.

She found that the appellants immediate attack upon the police car made it impossible for Stromner

to make any inquiries about whether Davis possessed a knife, or to decide whether the knife posed

a threat to public peace. Thus, there was no arbitrary detention contrary to section 9. Furthermore,she found that while there might have been a reason for the appellant to feel as if he was under some

form of arrest, while he was being pursued at gunpoint, the opportunity to communicate the reasons

for detention or arrest did not present itself until Mr. Davis lay injured on the ground. Thus, therewas no breach of section 10(a).

[22] The remaining alleged Charterbreaches related to the allegations that the police has usedexcessive force, or they had conducted a negligent investigation into the police involved shooting.

The suggestion that the police had used excessive force engaged section 25of the Code, the relevant

portions of which read:

25(1) Every one who is required or authorized by law to do anything

in the administration or enforcement of the law

...

(b) as a peace officer of public officer...

...

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.

...

(3) Subject to subsections (4) and (5), a person is not justified for thepurposes of subsection (1) in using force that is intended or is likely

to cause death or grievous bodily harm unless the person believes on

reasonable grounds that it is necessary for the self-preservation of theperson or the preservation of anyone under that persons protection

from death or bodily harm.

(4) A peace officer, and every person lawfully assisting the peaceofficer, is justified in using force that is intended or is likely to cause

death or grievous bodily harm to a person to be arrested, if


6/27

Page: 5

(a) the peace officer is proceeding lawfully to arrest,

with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested

is one for which that person may be arrested without

warrant;

(c) the person to be arrested takes flight to avoid

arrest;

(d) the peace officer or other person using the force

believes on reasonable grounds that the force is

necessary for the purpose of protecting the peaceofficer, the person lawfully assisting the peace officer

or any other person from imminent or future death or

grievous bodily harm; and

(e) the flight cannot be prevented by reasonable

means in a less violent manner.

[23] The defence submitted that, once it had demonstrated that force had been used, the Crown

bore the onus to of proving the factors justifying the use of force, under the applicable subsections

of section 25, beyond a reasonable doubt. The trial judge disagreed, finding that although the Crownwas required to prove the charges beyond a reasonable doubt, the onus was on Davis to demonstrate

that his Charterrights had been breached. Thus, she held that Davis bore the burden of establishing

that the requirements of section 25 had not been met on a balance of probabilities.

[24] She then reviewed the evidence and found that Stromner had used what efforts he could to

obtain help, that he had not heard the sirens of approaching police, and that at the point of the

shooting he had no other choice but to shoot in order to stop Davis from entering an area with peoplein it. She also found Stromner did not recognize Davis, despite having encountered him before, and

she rejected the defence suggestion that in shooting Davis the police officer acted out of malice or

anger. As well, the trial judge found that in these particular circumstances Stromner was not obligedto issue a warning that he would shoot before actual shooting, as any reasonable person in the

appellants position would have understood the consequences of failing to comply with a request

to drop a knife given by a police officer pointing a revolver at him, especially after the pepper sprayhad not worked.

[25] The trial judge concluded, on the evidence before her, that on a balance of probabilities

Stromner was justified in acting as he did. She concluded, therefore, that Davis Charterrights hadnot been breached through the use of excessive force.


7/27

Page: 6

[26] Finally, she examined the police investigation into the shooting conducted by ASIRT. She

concluded:

In my view, the ASIRT investigation did not fall below the

overarching standard of the reasonable police officer in the

circumstances. There were many resources that could have been

deployed, but the lead investigators reasons for not doing so weresound given the available evidence. Perhaps more important, there

was no evidence about how the failure to take those steps in any way

prejudiced the accuseds ability to make full answer and defence orin any way undermined the integrity of the judicial system.

The investigation did not breach Mr. Davis s. 7 and s. 11(d) rights.

[27] In the end, therefore, the trial judge concluded there was no need to grant a Charterremedy

by excluding evidence or granting a stay. She convicted Davis on all three counts, although she

entered a stay on Count 1 because it arose out of the same facts as Count 3. She also noted, in dicta,that she could take account of the fact that Davis had been shot and injured as part of sentencing.

This appears to have happened, as Davis was later given a suspended sentence.

IV. Grounds of Appeal

[28] Davis originally advanced three grounds of appeal. At the appeal hearing, however, one of

those grounds was abandoned. The remaining grounds of appeal are:

(a) the learned trial judge erred in failing to give sufficient reasons;

and

(b) the learned trial judge erred in her analysis of whether or not the

appellants Charterrights were breached.

V. Analysis

A. Ground One The alleged failure to give reasons

[29] Davis submits the trial judge erred by giving insufficient reasons on the issue of credibility,with the result that this Court cannot determine how she arrived at her findings of fact. More

specifically, the appellant points to Stromners evidence about the alleged assault at the police car

and notes that his evidence that the police car was charged by the knife-wielding Davis wascontradicted by three civilian witnesses Susan Giffen, Jill Thomas and Mathew Debeurs who

testified that Stromner simply got out of the police car unimpeded and approached Davis demanding

that he drop the knife. He submits the trial judge was obliged to explain her reasons for rejecting this

evidence, as the allegation that Davis had committed some form of assault at the police car wascentral to the trial judges findings on all three charges. Davis makes a similar argument in relation

to Stromners testimony about the appellants handling of the knife evidence, he submits, was also


8/27

Page: 7

contradicted by the evidence of several civilian witnesses who testified that they did not see Davis

raise the knife above his head, or that they did not see the knife at all.

[30] The starting point with respect to this ground of appeal is the general rule regarding the

sufficiency of reasons set out by the Supreme Court inR v Sheppard, 2002 SCC 26, [2002] 1 SCR

869. Binnie J stated at para 28:

The simple underlying rule is that if, in the opinion of the appeal

court, the deficiencies in the reasons prevent meaningful review of

the correctness of the decision, then an error of law has beencommitted.

[31] The Supreme Court has elaborated upon this simple underlying rule in a number of morerecent cases and, in particular, has discussed the sufficiency of reasons in the context of findings of

credibility. InR v Dinardo, 2008 SCC 24, [2008] 1 SCR 788. Charron J noted, at paras 26-27:

At the trial level, reasons justify and explain the result (Sheppard,at para. 24). Where a case turns largely on determinations of

credibility, the sufficiency of the reasons should be considered in

light of the deference afforded to trial judges on credibility findings.Rarely will the deficiencies in the trial judges credibility analysis, as

expressed in the reasons for judgment, merit intervention on appeal.

Nevertheless, a failure to sufficiently articulate how credibilityconcerns were resolved may constitute reversible error (see R. v.

Braich, [2002] 1 S.C.R. 903, 2002 SCC 27 at para. 23). As this Court

noted in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, theaccused is entitled to know why the judge is left in reasonable

doubt:

Assessing credibility is not a science. It is verydifficult for a trial judge to articulate with precision

the complex intermingling of impressions that emerge

after watching and listening to witnesses andattempting to reconcile the various versions of events.

That is why this court decided, most recently inH.L.,

that in the absence of a palpable and overriding errorby the trial judge, his or her perceptions should be

respected.

This does not mean that a court of appeal can abdicateits responsibility for reviewing the record to see

whether the findings of fact are reasonably available.

Moreover, where the charge is a serious one and


9/27

Page: 8

where, as here, the evidence of a child contradicts the

denial of an adult, an accused is entitled to know whythe trial judge is left with no reasonable doubt. [paras.20-21]

Reasons acquire particular importance where the trial judge must

resolve confused and contradictory evidence on a key issue, unlessthe basis of the trial judges conclusion is apparent from the record

(Sheppard, at para. 55).

[32] These comments were adopted and expanded upon by McLachlin CJC inR v REM, 2008

SCC 51, [2008] 3 SCR 3. The Chief Justice stated, at paras 50-51:

What constitutes sufficient reasons in issues of credibility may be

deduced from Dinardo, where Charron J. held that findings on

credibility must be made with regard to the other evidence in the case

(para 23). this may require at least some reference to thecontradictory evidence. However, asDinardo makes clear, what is

required is that the reasons show that the judge has seized the

substance of the issue. In a case that turns on credibility ... the trialjudge must direct his or her mind to the decisive question of whether

the accuseds evidence, considered in the context of the evidence as

a whole, raises a reasonable doubt as to his guilt (para 23). CharronJ. went on to dispel the suggestion that the trial judge is required to

enter into a detailed account of the conflicting evidence:Dinardo, at

para 30.

The degree of detail required in explaining findings on credibility

may also, as discussed above, vary with the evidentiary record and

the dynamic of the trial. The factors supporting or detracting fromcredibility may be clear from the record. In such cases, the trial

judges reasons will not be found deficient simply because the trial

judge failed to recite these factors.

[33] In summary, a trial judge is given considerable latitude in explaining his or her findings of

credibility in reasons, although the judge may be required to explain why he or she has found theevidence of one witness more credible than that of another when the evidence conflicts on a point

that is central to the issue before the court. The appellate court is also entitled to determine whether

the judges reasons, when appearing ill-explained, are clear from a review of the record.

[34] How do these principles apply here? As the authorities indicate, it is a rare case where a trial

judges assessment of credibility will be interfered with due to an absence of reasons. Here the trial

judge came to the general conclusion that Stromners evidence was credible, having been delivered


10/27

Page: 9

in both a forthright and fair manner, without exaggeration, and she used that evidence to conclude

that Davis had assaulted Stromner at the police car with a knife a key element in all three charges.The evidence of Giffen, Thomas and Debeurs, however, seemed to contradict Stromners evidenceon this point.

[35] The trial judge did acknowledge, in a general fashion, that there was conflicting evidence

about the events as they unfolded. She stated:

There were many different observations from many different

individuals. That is not surprising. Witnesses observed these eventsunfolding from different vantage points, at different starting points,

focussed on different things at different times.

[ARD F03/1.20-24]

[36] While it would have been preferable that the foregoing disagreement among witnesses on

a key point had been specifically discussed and explained by the trial judge, a review of the record

indicates the path she used to make her findings on credibility. The trial judge noted that Stromnersaccount was supported by the evidence of an eyewitness. In fact, it was confirmed, in most

important respects, by two witnesses who were close to the scene and may have had a better view

than other civilian witnesses who were some distance away. Grace Knittle, an employee of CanadaPost, was following behind the police car in a step-van as Stromner followed the appellant down

119 Avenue NW. She gave this evidence about what happened when the parties got to the end ofth

the road [transcript at 328]:

A And so when the man got to the end of the road, the man got

off his bike and the police car was behind him, and the manjumped off his bike and came up to the police car as the

policeman was getting out with the knife in his hand, and I

believe he was pushing with both hands the door back closed

when the officer was trying to get out; and then he justbacked up a bit, and the officer got out and drew his gun and

told him to drop the knife, many times to drop the knife, drop

the knife, and just kinda kept walking, turning around,walking, turning around, with the knife up in the air

sometimes, down, up, down: and then he continued walking

towards the McDonalds on the other side of the road, and thepoliceman pepper sprayed him I believe right in the face, and

it didnt really phase him. He just kept walking and turning,

and the police officer continued to tell him to drop the knife,

drop the knife. He didnt. And then they continued on, theycrossed the street; and then at the end near the McDonalds

parking lot, the police officer shot him. And then at first, I


11/27

Page: 10

thought he missed because he still didnt, didnt go to the

ground or anything, but then, then he did. Thats what I saw.

Q Okay. Can you describe the knife?

A I thought it was a butcher knife, a very big knife.

[37] Another civilian witness, Venus Parkman, a home care nurse, was driving her vehicle and

exiting the Abbotsfield Mall eastbound, in order to turn left onto Abbotsfield Road NW, at the time

of the alleged assault. She described the following scene transpiring to her left [transcript at 359]:

Then the boy or the young man, he dropped his bike, and he

charged at the car, and he came right up to the beside the cop cardoor. And I dont know if they talked or whatever, but then about a

couple of seconds later, probably about 10, 15 seconds, he backed

away and went back to his bike ...

[38] Thus, both of these witnesses gave evidence that the appellant initiated a confrontation with

Stromner in the police car before he could get out of the vehicle. While the trial judge did not

articulate which of these witnesses she was referring to, when she said she found support forStromners story in the evidence of an eyewitness, it is clear that the essential aspects of Stromners

testimony, that Davis confronted him at the door of the police car while in possession of a knife, was

supported by the evidence of other credible witnesses who were in a good position to see what wasgoing on. The trial judge was entitled to accept this evidence, as corroborative, and reject the

evidence of the other witnesses whose vantage points and perceptions were different. The path to

her conclusion is apparent from the record.

[39] Davis also complains that the trial judge did not explain how she reconciled the various

accounts from the civilian witnesses, about how he was holding the knife, with Stromners version.

In our view, however, the trial judge was not obliged to set out what each witness said, and thenattempt to reconcile the conflicting versions. As the trial judge noted, the evidence of the civilian

witnesses on this point diverged to the extent that it was virtually useless. The trial judge stated:

No witnesses described Mr. Davis handling the knife in exactly the

same way. Some said he waved the knife over his head in one hand;

at least one said he held it straight over his head in both hands; somedid not see him wave it over his head at all; one described lethargic

choppling motions; and one described forward thrusting motions,

after which Mr. Davis uttered, Bang.

Whatever else they saw, all agreed that notwithstanding Constable

Stromners repeated direction to do so, Mr. Davis did not drop the

knife.


12/27

Page: 11

[40] It follows that this ground of appeal must be dismissed.

B. Ground Two Excessive use of force

[41] This ground of appeal does not challenge the facts and law upon which the convictions for

assault were based. Rather, it involves the conduct of the police officer in apprehending Davis after

the assault occurred. Davis alleges that he need not have been shot, meaning that excessive force

was used, thereby breaching his section 7 Charterright not to be deprived of security of his person,except in accordance with the principles of fundamental justice. Furthermore, Davis submits that

his section 12 Charterright not to be subject to any cruel and unusual treatment was breached. We

note that if the police use excessive force in apprehending a person, and it results in a Charterbreach, then the remedies available include a stay in extreme and extraordinary situations: R v

Walcott, [2008] 57 CR (6 th) 223 (Ont SCJ). Alternatively, a remedy may be given at the sentencing

stage (R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206), or the misconduct may give rise to anaward of damages (Crampton v Walton, 2005 ABCA 81, 363 AR 216).

[42] Here, the gist of the appellants submission is that the trial judge misplaced the onus or

burden of proof in stating that Davis bore the burden on a balance of probabilities to demonstratethat Constable Stromner did not reasonably believe that force was necessary to preserve himself or

others from death or grievous harm and the he could have prevented Mr. Davis flight by reasonable

means less violent (ABD 11/24-27). Davis acknowledges, and it is trite law, that the accused hasthe onus in a Charterapplication of proving a breach of his rights on a balance of probabilities. He

submits, however, that where a police officer uses lethal force against a civilian, and relies on

section 25(3) of the Criminal Code to justify his actions, then the accuseds burden is dischargedonce it is shown that he was subjected to the use of force causing him grievous harm. An evidentiary

burden then falls upon the Crown to prove that the force was reasonable in all the circumstances and

thereby justified by section 25 of the Code. In this case, he argues, he met the onus by showing thathe suffered grievous bodily harm through the use of lethal force. It was then up to the Crown to

show that the use of lethal force was justified under section 25. Davis seeks a new trial, and if a

Charterbreach is then proved, the trial Court will determine the appropriate remedy.

[43] We agree with Davis that the Crown has the evidentiary burden of showing that section 25

of the Code has been met when it relies upon that provision to justify the use of force in

circumstances such as those in the case at bar. The section is designed to protect those engaged inlaw enforcement from civil and criminal liability when they are required to use force in performing

their public duties. It is clear, however, that when the section is invoked in this context, the burden

falls on the person seeking to rely on the sections protection to prove that it applies. This was setout in Chartier v Greaves, [2001] OJ No 634, an action against two police officers for assault. Power

J held at para 64, subnote (c):

The onus of proving that the force used was not excessive lies on thepolice officers. Put another way, the onus on a plea of justification in

the use of force lies on him who asserts it.


13/27

Page: 12

[44] This Court came to a similar conclusion in Crampton v Walton, 2005 ABCA 81, 363 AR

216, in applying subsection 25(1). The court noted, at para 14: As Mr. Crampton established theassault and the resulting injury, the police had to prove the assault was justified under s. 25(1).Imposing the burden in this fashion makes sense, as it is the police officer who is best suited to call

evidence regarding his subjective intent, as well as any surrounding evidence demonstrating the

objective reasonableness of that intent.

[45] This reasoning is even more compelling when dealing with subsection 25(3), the applicable

subsection in this case. While subsection (1) provides a positive right to use appropriate force when

required, subsection (3) removes justification for the use of deadly, or potentially deadly, forceunless the person using the force believes on reasonable grounds that it is necessary for the self-

preservation of the person or the preservation of anyone under that persons protection from death

or bodily harm.

[46] The trial judge distinguished the civil and disciplinary cases cited to her, in which the police

were found to bear the onus of proving the application of section 25, on the basis that the overall

burden in this case lay with the appellant to prove a breach of his Charterrights, on the balance ofprobabilities, through the use of excessive force. In our view, there is no good reason to distinguish

these cases on this basis. The Supreme Court did not do so in Nasogaluakwhen it applied the

objective/subjective test found in Chartierto an allegation the police had used excessive forced inmaking an arrest. InNasogaluak, the police officer was not charged with misconduct but, as in the

case before us, the police were relying on section 25(3) to repel the suggestion they had used

excessive force in making an arrest.

[47] Notwithstanding that the overall burden is on the person alleging a Charterbreach, the

situation is similar to a civil case where the overall burden lies with the plaintiff. Nonetheless, thelaw imposes an evidentiary burden on the defendant to prove the application of section 25, where

he seeks to use it to justify his conduct. Although not completely analogous, this is also similar to

the burden placed on the Crown in an application under section 8 of the Charter. Once an accused

shows that a search was unlawful, the burden falls to the Crown to show that the search wasnonetheless reasonable. This does not reverse the overall burden of proof on the Charterapplication,

which remains with the accused. It just places an evidentiary burden on the Crown with respect to

this aspect of the matter.

[48] The trial judges misstatement of the law with respect to onus, however, does not determine

the issue before us. Nothing turned on that issue in this case. The police called their evidence andthe issue was fully argued. The Crown did not rely upon the failure of Davis to adduce evidence on

the issue. In end result, the trial judge concluded:

Constable Stromner did not issue a warning, but I conclude on theevidence before me that, on a balance of probabilities, he was

justified in acting as he did and did not breach Mr. Davis s. 7, 9 and

12 rights.


14/27

Page: 13

[49] This passage clearly indicates that whatever the judge said about the appellants obligation

to disprove the application of section 25, she found in fact that Stromners use of force in thisinstance was justified. In doing so, she relied upon the principles set out inNasogaluak, at para 32,that the allowable degree of force to be used remains constrained from the principles of

proportionality, necessity and reasonableness.

[50] We have also considered whether the trial judge determined that the police officers beliefwas objectively reasonable, as she did not expressly say so. The test was described inNasogaluak

at para 34:

Section 25(3) also prohibits a police officer from using a greater

degree of force, i.e. that which is intended to likely to cause death or

grievous bodily harm, unless he or she believes that it is necessary toprotect him - or herself, or another person under his or her protection,

from death or grievous bodily harm. The officers belief must be

objectively reasonable. This means that the use of force under 25(3)

is to be judged on a subjective objective basis (Chartier v. Greaves... at para. 59.

[51] Here the trial judge accepted Stromners subjective belief that he had no other choice, at thepoint of the final confrontation, than to shoot. Otherwise the appellant would soon reach a point

where he was mingling with the public, putting bystanders in danger, and restricting Stromners

options to protect public safety. She also tested the objective nature of that belief, by examiningwhether Stromner could have used other means, such as circling or issuing a warning, to prevent the

appellants entry into an area where the public might be threatened. She concluded that these options

were neither plausible nor required under the circumstances, and she noted that Stromner hadalready tried to get the appellant to drop the knife by using other less intrusive means, such as the

pepper spray, all to no avail.

[52] Nevertheless, the shooting took place at the back of McDonalds, separated from publicaccess by a hill and a cement retaining wall. There were no members of the public present in the

immediate area. Davis had stopped moving away from Stromner and had turned to face him.

Unknown to Stromner, help in the form of two police officers, one equipped with a taser, was onlyseconds away. Indeed, both officers were at the scene before the appellant had fallen from his

injuries. The trial judge did not comment on this evidence.

[53] The record discloses, however, that the trial judge had evidence before her of a possible

imminent threat to public safety if Davis continued in the general direction that he was going. She

accepted Stromners evidence that he did not hear police sirens, and that he was unaware that help

was about to arrive. Further, in direct examination, Stromner gave the following factual evidencewith regard to the presence of people in the area, which supported his subjective belief:


15/27

Page: 14

Q. And did you know whether McDonalds was open at this time of

day?

A. Yes Maam, it was and I was just talking to people in the area, and

I could see people coming and going from the restaurant and there

was cars in the drive-thru. [transcript 132, lines 38-40]

...

Q. Okay. Then what happened?

A. The accused walked onto McDonalds parking lot property which

is the which would be the east side of the McDonalds, the back ofthe restaurant.

Q. M-hm.

A. And its actually raised up quite high. So were not where theres

people yet, it is the people are in front, but were on McDonalds

property. The accused turned around and faced me with the knifeagain. [transcript 134, lines 21-28]

[54] Further relevant factual information is contained in his evidence concerning his subjectivebelief. Stromner gave the following answer to the question of why he chose to discharge his firearm:

A. I feared for my life. I feared for the safety. I feared for the lives ofthe people in McDonalds. If this continued to the front of

McDonalds where there was people, I may reach a point where I

am unable to take any action with the maximum consideration for

public safety. He was going in the direction of a group of people

and we were almost there, and I felt that if he gets into the group of

people, they I have waited too long to take action.

[emphasis added] [transcript 135, lines 25-30]

[55] The trial judge had already determined that Stromners evidence was credible and reliable,

and other evidence did not contradict his evidence that Davis was moving into a populated area.Thus, there was evidence before her which, if believed, demonstrated that the police officers

subjective belief was objectively reasonable. The trial judge rejected defence counsels specific

suggestions that Stromner could have gone around Davis to prevent him from going into a populated

area, finding that it is unlikely that would have been a safer alternative. The trial judge cited andrelied uponNasogaluakin her analysis of the allowable degree of force, and we are satisfied that

she made her judgment on a subjective-objective basis.


16/27

Page: 15

VI.Conclusion

[56] The appeal is dismissed.

Appeal heard on October 4, 2012

Memorandum filed at Edmonton, Albertathis 24 day of January, 2013th

OBrien J.A.

McDonald J.A.


17/27

Page: 16

Fraser CJA (dissenting):

I. Introduction

[57] This appeal concerns the limits on a police officers use of deadly force in effecting an arrest.

Under the law, police officers are accorded a significant degree of latitude in their use of force to

complete an arrest, and appropriately so. Courts have often stressed that police actions cannot bemeasured to a standard of perfection but must be assessed in light of the dangerous and exigent

circumstances in which the police often find themselves:R v Nasogaluak, 2010 SCC 6 at para 35,

[2010] 1 SCR 206. However, police officers do not have an unlimited right to inflict harm on aperson, much less deadly force, in the execution of their duties. Under s. 25 of the Criminal Code,

police use of force is constrained by the principles of proportionality, necessity and

reasonableness:Nasogaluak,supra, at para 32. Indeed, because of the latitude given to the policein exercising their duties, courts must be vigilant in ensuring that the limitations on the police power

of the state that do exist are upheld. The rule of law binds everyone in Canada including the police:

Dedman v The Queen, [1985] 2 SCR 2 at para 25.

[58] In this case, a police officer intentionally used deadly force in arresting the appellant, Percy

Walter Davis, a young Aboriginal man. Davis was charged with possession of a knife for a

dangerous purpose, assaulting a police officer and assault with a weapon. At trial, the defencecontended that the police officer who arrested Davis had breached several of Daviss Charterrights.

The essence of the defence claim was that the force used by the police officer in arresting Davis

two gunshots, one to Daviss neck and the other to his upper chest was excessive and thereforeunjustified at law. The gunshots, from four metres away, to the biggest part of Daviss body where

critical bodily organs are located were life threatening and therefore constituted deadly force: see

Appeal Record (AR) 134/33-40, 135/1-10. The defence asked for an exclusion of evidence, a stayof proceedings or a remedy on sentencing.

[59] The trial judge rejected the defence position. In concluding that DavissCharterrights were

not breached, the trial judge determined that it was Davis as the Charterclaimant who bore theburden of establishing that the force used by the police officer was not justifiable under s. 25 of the

Criminal Code. Thus, she declined to exclude the evidence or grant a stay of proceedings. She

convicted Davis on all three counts.

[60] The defence appealed the trial judges decision on three grounds. One was that the trial judge

erred in her analysis of whether Daviss Charterrights were breached. I agree with the majority thatthe trial judge erred in law in concluding that Davis bore the burden of establishing that the use of

deadly force was not justifiable under s. 25 of the Code.

[61] However, I respectfully disagree with the majoritys conclusion that nothing turned on thiserror of law. It is apparent from reviewing the chain of reasoning followed by the trial judge that her

error of law in misallocating the burden of proof tainted both her assessment of the evidence and the

legal conclusions she reached. Put simply, the trial judge compounded the burden of proof error by


18/27

Page: 17

then failing to articulate and apply the proper test for determining whether the Crown had met the

evidentiary burden imposed on it to establish, given theprima facie breach of s. 7 of the Charter,that the police actions were justified at law.

[62] This error of law warrants a new trial in accordance with s. 686(1)(a)(ii) of the Code. This

is not a case where the appeal can be dismissed under s. 686(1)(b)(iv) on the basis that the error did

not prejudice Davis. Clearly, it did by improperly placing a burden of proof on him to prove anegative, namely that the police actions were not justified under s. 25. Nor can it be dismissed under

s. 686(1)(b)(iii) on the basis that, despite this error of law, no substantial wrong or miscarriage of

justice occurred. This is not a harmless error which had no impact on the trial outcome. Therefore,to rely on this curative proviso, the Crown must establish that there is no reasonable prospect that

the verdict would have been different absent the error:R v Charlebois, 2000 SCC 53,[2000] 2 SCR

674; R v Khan, 2001 SCC 86,[2001] 3 SCR 823. It has not done so. It cannot be said that theapplication of the proper test would necessarily have led to the same result on the Charterapplication and thus, that the trial outcome was inevitable.

II. Relevant Background Facts

[63] The trial judge made a number of fact findings as to how events unfolded here. For purposes

of this analysis, I take no issue with respect to certain fact findings the trial judge made. However,as explained below, I have concluded that the trial judges error in misallocating the burden of proof

compromised the manner in which she assessed and interpreted critical aspects of the evidence.

[64] I do not intend to review the facts in detail. Briefly, a police officer was dispatched to an area

near an Edmonton shopping mall, Abbotsfield Mall, following a complaint about a youth riding

around on his bike with a butcher knife. The police officer found Davis riding his bicycle down anavenue by the Mall and followed him down the street. He stopped and sounded his air horn to get

Daviss attention.

[65] After the police officer sounded his air horn, Davis turned to face the police officer andcharged at the drivers side of the police cruiser with the knife raised above his head. The police

officer ducked over to the passenger side covering his head with his arm. He managed to get his

pistol out and unlatch his door. Davis, who had his knife in his hand, arm over head, then backedoff, picked up his bike and began to walk away. He continued to walk away or back away as the

police officer advanced. The police officer gave him repeated verbal instructions to drop the knife.

At some point, Davis turned to face the police officer and the officer pepper sprayed him in the face.The pepper spray appeared to have no effect on Davis, who again began to walk away or back away

from the officer.

[66] When Davis had charged at the cruiser, the police officer had declared a 10-13 emergencyon the radio, indicating that an officer was in distress and in need of immediate assistance. After he

pepper sprayed Davis, the police officer downgraded the 10-13 emergency to a 10-17, indicating,

according to the evidence of one officer, that assistance was needed, but not as urgently. Another


19/27

Page: 18

officer testified that the change to a 10-17 meant that the officer involved would not have considered

the threat as urgent.

[67] As Davis moved away from the police officer, the police officer held his gun in both hands,

at eye level, pointed directly at Davis, and continued to instruct him to drop the knife. Davis did not

drop the knife and continued to back away or walk away from the police officer.

[68] Davis crossed the road to the centre median in the direction of the Mall. The police officer

advised dispatch to get cars here now. CED on the double. By that, he meant a taser. The police

officer testified that he was not going to let Davis get to people as long as he held the knife in hishand. He did not know when officers would arrive and he believed that if he did not take action,

Davis would enter a populated area (a McDonalds restaurant) and his options for stopping Davis

would be very limited. When Davis again stopped and turned to face the police officer, the policeofficer made the decision to shoot Davis without any warning. He shot Davis twice in rapid

succession, as noted, once in the neck to the right of his Adams apple and once in the right chest.

[69] Almost immediately, two officers arrived on the scene, one in a police car and the other onfoot. Davis was taken to hospital and treated for life-threatening injuries.

[70] The entire sequence of events from the time the police officer activated his air horn to getDaviss attention to the time of shooting was very short. Less than three minutes after the police

officer declared the 10-13, he reported that an ambulance was needed and shots had been fired:

Appeal Record Digest (ARD) F1/32-38.

III. Analysis

[71] Section 7 of the Charterprovides that everyone has the right to life and security of the

person and the right not to be deprived thereof except in accordance with the principles of

fundamental justice. The alleged use of excessive force by a police officer in the exercise of the

police power of the state can engage s. 7 if the interference with the persons physical orpsychological integrity rises to the level of a threat to the persons life or security as contemplated

under s. 7:Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519;Nasogaluak,supra,

at para 38.

[72] Where the police use deadly force against someone, this constitutes a serious infringement

of that persons life or security. Accordingly, for this infringement to withstand Charterscrutiny,it must comply with the principles of fundamental justice. Disproportionate use of force or arbitrary

action by police in the discretionary exercise of the police power of the state cannot fit within this

limitation: see Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at

paras. 117, 127-136, [2011] 3 SCR 134 as to those circumstances in which the exercise of adiscretion will not be consistent with principles of fundamental justice. Compliance with the

principles of fundamental justice requires that deadly force be justified under the law. The applicable

law is s. 25 of the Code which limits the police power of the state to use deadly force in a free and


20/27

Page: 19

democratic society. Providing that the use of deadly force complies with the limitations in s. 25, it

will not violate s. 7. This presupposes that s. 25 is Charter-compliant, an issue that was not beforeus.

[73] Under s. 25(1), a police officer is permitted to use as much force as is necessary to effect

an arrest, provided that he or she is acting on reasonable grounds. However, there are further

limitations under ss. 25(3) and (4) where the use of force is intended or is likely to cause death orgrievous bodily harm to a person to be arrested. In these circumstances, the police officer must

believe that the force is necessary to protect the officer or another person under his or her protection

from death or grievous bodily harm. That belief must also be objectively reasonable:Nasogaluak,supra, at para 34. Further, if force of that degree is used to prevent a suspect from fleeing to avoid

a lawful arrest, the same limitations apply plus there is an additional limitation, namely that the

flight could not have been prevented by reasonable means in a less violent manner. It is notsurprising that Parliament has stipulated strict requirements to justify the use of deadly force by

police. As McLachlin J (as she then was) wrote inR v McIntosh, [1995] 1 SCR 686 at para 82: Life

is precious....

[74] The specific wording of the relevant portions of s. 25 follows:

25(1) Every one who is required or authorized by law to do anythingin 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.

...

(3) Subject to subsections (4) and (5), a person is not justified for the

purposes of subsection (1) in using force that is intended or is likely

to cause death or grievous bodily harm unless the person believes on

reasonable grounds that it is necessary for the self-preservation of theperson or the preservation of any one under that persons protection

from death or grievous bodily harm.


21/27

Page: 20

(4) A peace officer, and every person lawfully assisting the peace

officer, is justified in using force that is intended or is likely to causedeath or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest,

with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested

is one for which that person may be arrested without

warrant;

(c) the person to be arrested takes flight to avoid

arrest;

(d) the peace officer or other person using the force

believes on reasonable grounds that the force is

necessary for the purpose of protecting the peaceofficer, the person lawfully assisting the peace officer

or any other person from imminent or future death or

grievous bodily harm; and

(e) the flight cannot be prevented by reasonable

means in a less violent manner.

[75] For present purposes, I note that the argument before the trial judge proceeded on the basis

that it was s. 25(4) that was engaged here. That is evident from the comments of the trial judge: seeARD F11/23-27. However, regardless of whether s. 25(3) or s. 25(4) is relevant in this context, the

errors in the trial judges reasons apply equally to both.

[76] At trial, the defence contended that the force the police officer used was excessive and thatDaviss Charterrights were violated. In addition to its claim under s. 7, the defence argued that

Daviss s. 12 right (the right not to be subjected to cruel and unusual treatment) was violated.

[77] In concluding that the force used was not excessive, the trial judge stated that the burden of

proof of a Charterviolation rests with the party asserting that violation. That is a correct statement

of the law as far as it goes. However, she wrongly determined that this meant that where excessiveforce is alleged, an accused bears the burden of proving that the force used was excessive. She put

it this way at ARD F11/23-27:

He bears the burden on a balance of probabilities to demonstrate that[the police officer] did not reasonably believe that force was

necessary to preserve himself or others from death or grievous bodily


22/27

Page: 21

harm and that he could have prevented Mr. Daviss flight by

reasonable means less violent.

[78] I agree with the majority that this is an incorrect statement of the law. Once an accused has

met the burden of establishing that the police used deadly force against him or her, this constitutes

aprima facie breach of s. 7 of the Charter. The evidentiary burden then shifts to the Crown to prove

that the force used was justified in the circumstances. The test as to whether the use of deadly forcewas justified requires a combined subjective - objective analysis:Nasogaluak, supra at para 34; also

seeR v Storrey, [1990] 1 SCR 241. The trier of fact must conclude not only that the police officer

subjectively believed that the use of force was necessary in all of the circumstances to protect thepolice officer or others from death or grievous bodily harm, but also that this belief was objectively

reasonable.

[79] This being so, it would be unfair to impose on an accused the burden of proving a negative,

namely that the deadly force was not justified. Evidence of the subjective belief of the police officer

falls squarely within the exclusive knowledge of the police officer and similarly, evidence as to what

was considered reasonably necessary in the circumstances from an objective viewpoint may wellbe linked to police practices and procedures. This evidence is not within either the ready knowledge

or control of an accused.

[80] I would add a word of caution. Where an accused establishes aprima facieCharterbreach,

it is not proper to speak of a burden being imposed on the police. Those cases that refer to the

burden shifting to the police are civil ones in which the police were defendants: see eg. Chartier v.Greaves, [2001] OJ No 634 (QL) (SCJ) at para 64, subnote (c); and Crampton v. Walton, 2005

ABCA 81, 363 AR 216 at para 7. However, in a criminal trial, the police are neither parties to a

prosecution, nor defendants. Where an accused establishes a prima facie breach of s. 7 of the

Charterbecause deadly force has been used against him or her, what is at issue is the police power

of the state. The evidentiary burden then shifts to the Crown to prove on a balance of probabilities

that the police actions were justified in accordance with the limitations in s. 25 of the Code and thus

in compliance with the principles of fundamental justice.

[81] Therefore, once Davis established aprima faciebreach of s. 7, the evidentiary burden shifted

to the Crown to establish that the use of deadly force by the police officer complied with thelimitations in s. 25. Accordingly, the trial judge erred in imposing a burden on Davis as the accused

to prove otherwise.

[82] As noted earlier, the majority concludes that this error of law was harmless and that nothing

turned on that issue in this case. I cannot agree. The trial judges misunderstanding of the burden

of proof had a significant negative effect on her assessment of the evidence and her ultimate

conclusion on the police officers use of deadly force.

[83] I begin with this. It is true that after the trial judge had discussed the failure of the police

officer to issue a verbal warning before shooting Davis, the trial judge stated at ARD F15/13 -15:


23/27

Page: 22

[The police officer] did not issue a warning, but I conclude on theevidence before me that, on a balance of probabilities, he wasjustified in acting as he did and did not breach Mr. Davis s. 7, 9 and

12 rights.

[84] However, where, as here, a legal conclusion rests on a faulty chain of reasoning, includinga failure to identify and apply the proper legal test in assessing whether police actions were justified

under s. 25, that conclusion may well be fatally flawed. That is so in this case. The trial judges

analysis here was inadequate and incorrect. I offer three reasons for this determination.

[85] First, as a matter of common sense, when a trial judge improperly imposes a burden of proof

on an accused, it follows logically that this misallocation of the burden of proof will frequently tainta trial judges assessment of evidence. Why? Judicial analysis of a set of facts is usually influenced,

if not dominated, by the trial judges understanding of where a burden of proof lies. An incorrect

understanding may lead to a trial judges disregarding, or treating as neutral, evidence that would

otherwise have significance and arguably operate in favour of the defence had the trial judgeproperly allocated the burden of proof. This kind of processing error is analogous to that which

occurs when a trial judge has misapprehended the substance of material parts of the evidence:R v

Morrissey (1995), 22 OR (3d) 514. Where a burden of proof has been misallocated, it too maynegatively impact on the fairness of the trial. That is what happened here. The trial judge improperly

discounted or ignored relevant evidence or failed to understand why certain evidence was relevant

and essential in assessing whether the Crown had met the evidentiary burden imposed on it. I discusssome of this evidence below.

[86] Second, as a direct result of the misallocation of the burden of proof, the trial judge failedto expressly advert to the need for the Crown to establish that the police officers belief that the

shooting was necessary was objectively reasonable. To determine whether the police officers

actions were justified under s. 25, the trial judge had to ask herself two questions. The first is

whether the police officer himself believed that the use of force was necessary to protect him orothers from death or grievous bodily harm. The second is whether that belief that deadly force was

necessary to protect the officer or others from death or grievous bodily harm was objectively

reasonable. While she addressed the first question, she did not properly address the second.

[87] The trial judge zeroed in on the subjective state of mind of the police officer and whether he

believed it was necessary to use deadly force to effect Daviss arrest. She found him to be a crediblewitness and she accepted that he feared for his life and for the lives of others. However, her focus

on what the officer subjectively believed caused her to lose sight of the crucial issue of whether the

Crown had established that the police officers actions met the objective standard imposed under

s. 25. Indeed, the word objective is not mentioned even once in the trial judges reasons.

[88] Had this analysis been undertaken, the trial judge would have assessed the element of

necessity in the context of the facts on the ground. In this regard, the defence had argued at trial that


24/27

Page: 23

the police officer could have used other means to stop Davis such as circling behind him or issuing

a warning before shooting. The way in which the trial judge dealt with those other optionscompellingly demonstrates how her incorrect premise as to burden of proof compromised herreasoning. In her view, the defence suggestion that the police officer should have considered these

other options was informed by hindsight: ARD F15/7-13.

[89] But in assessing whether the police officers belief that deadly force was necessary wasobjectively reasonable as the Code requires, it would not have been hindsight for the trial judge to

consider whether other reasonable options existed short of shooting Davis twice in rapid succession:

R v Aucoin, 2012 SCC 66 at paras 39-42. This is precisely the analytical exercise that a trial judgeis required to undertake in determining whether the Crown has met the evidentiary burden imposed

on it to justify the use of deadly force once the defence has established, as it did here, aprima facie

breach of s. 7.

[90] The trial judge failed to assess the use of deadly force from this perspective, no doubt as a

result of her initial error as to burden of proof. That assessment would have included considering

the implications of the police officer downgrading the threat that Davis posed as well as whetherpolice back-up and the taser which the police officer had ordered were close at hand and would have

sufficed to deal on a timely basis with Davis and any perceived threat. It would also involve

considering whether the police officer should have heard what others plainly heard, namely the sirenfrom another police car with back-up on the way to the scene as this too is relevant in determining

whether the police officers belief was objectively reasonable.

[91] The trial judge would also have had to consider whether it was objectively reasonable for

the police officer to conclude that he would not have had other opportunities to stop Davis before

he moved towards the public area by McDonalds short of shooting him when he did. On this lastpoint, it is important to understand the evidence before the trial judge. The police officer had

testified that he feared for the lives of the people in McDonalds. Davis was shot near the south

entrance of a service road to the Abbotsfield Mall. The photos entered as an exhibit at trial reveal

the following. There is a McDonalds restaurant near that entrance to the Mall service road, but theservice road entrance borders the area at the back of the McDonalds and is below it by some

distance. In other words, it is both behind and below the restaurant. Further, it is separated from

public access by an embankment and a retaining wall that borders a set of stairs leading up to theparking area. The point is this. Even if there were people on the other side of the McDonalds

restaurant, that is by the public area, they were some distance from where Davis was shot. More

important, Daviss progress to the public area would have been slowed considerably by his need toascend the stairs or climb up the embankment and over a concrete wall just to reach the restaurant

parking lot.

[92] This evidence whether there were other reasonable options open to the police officer shortof employing deadly force goes directly to the issue of whether the Crown had established on a

balance of probabilities that the police officers belief that deadly force was necessary was in fact

objectively reasonable.


25/27

Page: 24

[93] In addition, the trial judge was obliged to determine whether it was objectively reasonablethat the police officer believed that death or grievous bodily harm to the officer or others wasimminent or foreseeable. On this point, the trial judge ought to have taken into account all the

evidence including what the police officer stated when he was interviewed following the shooting.

As part of that interview, he was asked whether Davis was pointing the knife at him when Davis

turned around. The police officer stated: He had the knife up like this, and he he hes not hesnot aggressive. He I cant say hes not aggressive: AR 244/24-25 (as quoted from Exhibit 45,

page 21). The police officer also stated during that interview: I did not want the accused into a

position where he could possibly injure or kill a member of the public: AR 135/34-35.

[94] These statements by the police officer go not merely to the officers subjective belief but also

to the question of whether the Crown had established on a balance of probabilities that it wasobjectively reasonable for the police officer to conclude that death or grievous bodily harm was

imminent or foreseeable so as to make the use of deadly force necessary when he shot Davis. There

is a critical difference between a belief that an accused might get into a position where he might

possibly injure or kill a member of the public and the objectively justified belief that, at the timedeadly force is employed, death or grievous bodily harm is actually imminent or foreseeable. In this

regard, for the deadly force by police to be proportional to the force to which it is responding, the

accused must then be using force that is intended, or is likely, to cause death or grievous bodilyharm. None of this analysis occurred here.

[95] Third, the trial judge erred in the way in which she dealt with whether the police officerought to have issued a warning before shooting Davis. Again, this error is directly linked to her

starting point error on the burden of proof. The defence had argued that Canadian law requires an

officer to issue a warning, where feasible, before using deadly force. The trial judge noted that sheheard much evidence on that point and it led her to conclude, and properly so in my view, that

whether a warning is warranted depends on the circumstances. She then went on to explain why she

had concluded that no warning was required in this case. She reasoned that Davis knew that the

police officer was pointing his service revolver at him. She concluded that a warning was notwarranted because a reasonable person would understand [the police officer] would use [his service

revolver] if the circumstances warranted it. There was no other purpose in continuing to point his

service revolver at Mr. Davis after Mr. Davis failed to comply with verbal direction to drop theknife. (ARD 14/ 36-39).

[96] This reasoning is flawed. On this thinking, there would never be any need for a police officerto issue a warning before shooting to kill once the target failed to comply with a police direction.

Moreover, this reasoning again demonstrates the errors flowing from the trial judges burden of

proof error. She refers to a reasonable person understanding that the police officers continuing to

point the gun would mean that it would be fired if the circumstances warranted it. But the questionis not what a reasonable person would understand or not understand, nor what Davis should

reasonably have understood from the police officers continuing to point the gun at him. The

question is whether, in the circumstances here, a verbal warning was another reasonable option that


26/27

Page: 25

the police officer ought to have pursued before using deadly force against Davis. In other words, was

it objectively reasonable for the police officer to have concluded that shooting Davis when he didwithout warning was necessary to protect the officer and others from death or grievous bodilyharm? The trial judge failed to address this question because of her misdirection on the burden of

proof.

[97] In summary, as a result of the error in misallocating the burden of proof, the trial judgesanalysis of whether the use of deadly force was justified was conducted from the wrong perspective.

As a consequence, at no time did the trial judge ever consider whether the Crown had established

on a balance of probabilities that the police officers use of deadly force was justified at law.Reasonableness is not only a matter of what a judge in a calm and reflective environment with the

benefit of hindsight might now think. But equally reasonableness is not only a matter of what the

officer at the scene thought. The finality of deadly force demands both accessible and acceptablestandards. As I have explained, the trial judge here failed to test the police officers subjective belief

about the necessity for deadly force against the objective standard mandated by law. That failure

means that her conclusion about whether the deadly force was justified cannot stand.

[98] I recognize that even if a Charterbreach is established, a question would still arise whether

that breach would justify either staying charges that arose from Daviss actions prior to the breach,

or excluding evidence relating to those charges. Or whether some other remedy, such as taking anysuch breach into account in sentencing, might possibly be appropriate. However, as I am of the view

that this case should be re-tried, it is not appropriate for this Court to discuss potential just and

appropriate remedies, if any, at this stage. The fact remains that it cannot be safely concluded thatthe errors here would not have had a material effect on the trial outcome. Nor can it be said that the

starting point error as to burden of proof and the additional errors of failing to properly assess and

relate the evidence to the correct test of justification for the use of deadly force were harmless to theresolution of the Charterapplication and thus, the trial outcome. This is so both with respect to

whether a Charterbreach occurred and if so, what remedies, if any, might, or should, properly flow

from that.

IV. Conclusion

[99] For these reasons, I would allow the appeal and order a new trial.

Appeal heard on October 4, 2012

Memorandum filed at Edmonton, Alberta

this 24 day of January, 2013th

Authorized to sign for: Fraser C.J.A.


27/27

Page: 26

Appearances:

D.C. Marriot, Q.C.for the Respondent

P.J. Royal, Q.C.

for the Appellant

man shot by police loses appeal

Documents