Supreme Court of Canada
Roberge v. The Queen, [1983] 1 S.C.R. 312
Date: 1983-03-24
Jean Roberge Appellant;
and
Her Majesty The Queen Respondent.
File No.: 16711.
1982: May 10; 1983: March 24.
Present: Ritchie, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
Criminal law—Police—Powers to arrest without a warrant—Use of firearm—Pursuit across provincial border—Police officer firing shots at suspect’s car—Territorial jurisdiction—Whether police officer used his firearm in a careless manner without lawful excuse—Criminal Code, R.S.C. 1970, c. C-34, ss. 25, 26, 84(2) [1976-77 (Can.), c. 53, s. 3], 233(4), 449 and 450 [R.S.C. 1970 (2nd Supp.), c. 2, s. 5], 771(1).
Appellant, a member of the Quebec Police Force, crossed the provincial boundary in pursuit of a vehicle believing the driver had just committed the offence of dangerous driving. Despite several warnings, the driver refused to stop. As a last resort, appellant fired two warning shots. The driver eventually stopped but sped off as the appellant approached his vehicle on foot. The appellant fired three more shots at the car’s rear tires. The driver escaped. A New Brunswick provincial court judge convicted appellant of using his revolver without lawful excuse in a careless manner. This judgment was overturned by the Court of Queen’s Bench but restored on appeal. This appeal raised several questions: (1) whether appellant was a peace officer authorized to arrest without a warrant in New Brunswick; (2) whether appellant was protected by s. 25(4) of the Code and (3) whether appellant used excessive force.
Held: The appeal should be allowed.
Appellant could arrest without a warrant as he had reasonable grounds to believe that the driver was committing the offence of dangerous driving. He therefore started his chase in Quebec qua a police officer with the protection afforded to him under s. 25(4) of the Code. He still had this protection at the time he used his gun in New Brunswick. As a matter of law, a peace officer who has lawful authority to arrest a person under s. 450
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in one province and is pursuing that person, retains, for the purpose of s. 25(4), his status of a peace officer in another province inasmuch as the pursuit had commenced lawfully in his jurisdiction and as long as such pursuit is fresh. The police officer should, as did the appellant, endeavour to contact the local peace officers as soon as possible, even during the pursuit, circumstances permitting. Once the local authorities have taken over the pursuit, he ceases to be a peace officer and becomes then a person assisting peace officers under s. 449(1)(b), and, as such, will continue enjoying the protection of s. 25(4). The reasonableness of appellant’s conduct must be assessed in the light of the state of mind of a reasonable person reacting not to what was discovered after the incident but to what the driver’s conduct in escaping suggested might be discovered upon immediate arrest. Here, the driver persisted in his flight notwithstanding all the warnings. The Court of Queen’s Bench found that the force resorted to under the circumstances was not excessive. That finding was one of fact with which this Court could not and should not interfere.
R. v. Biron, [1976] 2 S.C.R. 56; Attorney General for Saskatchewan v. Pritchard (1961), 130 C.C.C. 61, 35 C.R. 150, 34 W.W.R. 458; Wiltshire v. Barrett, [1965] 2 All E.R. 271; R. v. Shyffer (1910), 17 C.C.C. 191, referred to.
APPEAL from a judgment of the New Brunswick Court of Appeal (1981), 35 N.B.R. (2d) 23, 88 A.P.R. 23, 22 C.R. (3d) 263, setting aside a judgment of the Court of Queen’s Bench (1980), 31 N.B.R. (2d) 668, 75 A.P.R. 668, allowing the accused’s appeal from his conviction in Provincial Court on a charge of careless use of a firearm without lawful excuse. Appeal allowed.
J. Roger McIntyre, for the appellant.
Paul Thériault, for the respondent.
The judgment of the Court was delivered by
LAMER J.—This Court is the fourth and the third in appeal, to determine and deal with the issues arising out of an incident that started in Quebec and finished in New Brunswick involving a
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member of the Quebec Police Force and a New Brunswick taxi driver.
Following this incident, the police officer was charged in New Brunswick for having, without lawful excuse used his revolver “in a careless manner contrary to and in violation of s. 84(2)(b) of the Criminal Code”, while the taxi driver was charged in Quebec with dangerous driving contrary to s. 233(4) of the Criminal Code. We do not know what happened to the latter charge. This appeal concerns only the former.
At trial, the constable was convicted by a Provincial Court Judge. He appealed to the Court of Queen’s Bench and was acquitted. The Crown appealed to the New Brunswick Court of Appeal which allowed the appeal and restored the conviction. The constable now asks this Court to restore the acquittal entered by the Court of Queen’s Bench. I think he should succeed.
The Facts
The primary facts, as found by the trial judge, are not disputed, and were accepted by the Summary Conviction Appeal Court Judge, and are as follows.
On February 12, 1979, an off-duty taxi driver, one Roger Chassé, left his residence in Campbellton, New Brunswick, to go to Cross Point, in the Province of Quebec, to make a few purchases. He then proceeded home and was taken in chase in Quebec by appellant, a Quebec police officer. The reasons for this chase are related by the trial judge as follows:
[TRANSLATION] The testimony established that the accused is a member of the Quebec Police Force, stationed at Matapédia, Province of Quebec. In the course of his duties he stopped an automobile driven by one Lucius Landry at the entrance to the bridge leading from Cross Point to Campbellton, on the Quebec side. While he was questioning the driver of the vehicle he had stopped, he saw a taxi coming toward him at high speed. The driver who had been stopped, Lucius Landry, noticed nothing unusual: he thought everything was just as usual. As the vehicle, which we now know was a taxi driven by Roger Chassé, was approaching the bridge, the accused said that it was being driven on the left side
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of the road, the police car and Landry’s car being parked on the right side of the road at the entrance to the bridge. When the accused looked in the direction in which the taxi was travelling, he saw a van coming and said he expected there would be a collision, but that the van pulled to the right to allow the taxi to pass. He then returned to his car and set off in pursuit, travelling at speeds up to 70 mph on the interprovincial bridge. The speed of the taxi was not determined. On arriving at the intersection of Subway and Roseberry Streets in Campbellton, N.B., the accused, who was driving an unmarked car without a red light, said he drove up beside the taxi using his siren and trying to stop it. The driver of the taxi made certain gestures toward him with his finger and continued going, turning onto Minto Street and slowing to a stop at Minto and Arran. On arriving at Arran and Gerrard streets, the officer stated that he passed the taxi and stopped, got out of his car, and the taxi tried to bump his vehicle. He then reversed, drove around him and drove off to the south along Gerrard Street, and from there onto Dover Street, where he was travelling at a speed of up to 70 mph. He then turned onto Tingley Crescent, which is a residential area, and when he turned this corner the accused took out his 38 revolver and fired two warning shots into the air. The chase continued around Tingley Crescent and the taxi stopped at a point which was later found to be the taxi driver’s residence. The accused jumped out of his car and ran toward the taxi with his gun in his hand. The taxi began moving and the accused then fired three shots at the taxi, puncturing a tire and making two holes in the mudguard. The accused then lost contact with the taxi and reported the case to the R.C.M.P.
As I deal with this appeal I will occasionally refer to a few undisputed facts disclosed in evidence which were not mentioned in the trial judge’s narrative. Considering his approach to the issues arising in this case, he probably did not think them of any relevance.
The Judgments
Before summarizing the judgments we should bear in mind that the Court of Queen’s Bench was sitting as a Summary Conviction Appeal Court, that the appeal was determined on the transcript of the record and that the Queen’s Bench Justice’s right to determine matters of fact was no less but no more than that enjoyed by a Court of Appeal under Part XVIII of the Code in dealing with facts where leave has been granted to appellant on
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grounds involving questions of fact. It also should be remembered that the New Brunswick Court of Appeal was limited to questions of law (s. 771(1) Criminal Code), as is this Court.
The charge is under s. 84(2):
84. …
(2) Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons
(a) is guilty of an indictable offence and is liable to imprisonment
(i) in the case of a first offence, for two years, and
(ii) in the case of a second or subsequent offence, for five years; or
(b) is guilty of an offence punishable on summary conviction.
The relevant powers of arrest without warrant by a peace officer are set out in s. 450(1):
450. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person for whose arrest he has reasonable and probable grounds to believe that a warrant is in force within the territorial jurisdiction in which the person is found.
Those of the citizen at s. 449(1) and (3):
449. (1) Any one may arrest without warrant
(a) a person whom he finds committing an indictable offence, or
(b) a person who, on reasonable and probable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
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(2) …
(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.
Dangerous driving is covered at s. 233(4):
233. …
(4) Every one who drives a motor vehicle on a street, road, highway or other public place in a manner that is dangerous to the public, having regard to all the circumstances including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place, is guilty of
(a) an indictable offence and is liable to imprisonment for two years, or
(b) an offence punishable on summary conviction.
The right given persons to resort to force and the justification they may invoke when having done so, if criminally prosecuted as a result of arresting others, is grounded in s. 25 of the Code, the more relevant portions being s. 25(1), (3) and (4):
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.
(2) …
(3) Subject to subsection (4), 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 he believes on reasonable and probable grounds that it is necessary for the purpose of preserving himself or any one under his protection from death or grievous bodily harm.
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(4) A peace officer who is proceeding lawfully to arrest, with or without warrant, any person for an offence for which that person may be arrested without warrant, and every one lawfully assisting the peace officer, is justified, if the person to be arrested takes flight to avoid arrest, in using as much force as is necessary to prevent the escape by flight, unless the escape can be prevented by reasonable means in a less violent manner.
The Trial Court
The trial judge decided that the police officer was not empowered to arrest without a warrant. To this end he referred to s. 450(1)(a) which in my opinion, has no application here, and he made no reference to s. 450(1)(b). This, however, was not detrimental to the accused’s position because the test a police officer must meet, in order to be empowered to arrest without a warrant under s. 450(1)(a) is, to the extent that it differs, at least as easily satisfied as that under s. 450(1)(b).
He then (I have taken the liberty of rearranging the order of presentation of the issues that Court addressed) set out the test under s. 450(1)(a) as follows (he quoted without giving references the following text):
[TRANSLATION] In order to constitute reasonable and probable grounds, it is not sufficient if the peace officer acts “in good faith”; his belief must be based on reasonable and probable grounds (Hopper v. Clark (1911), 40 N.B.R. 568, C.A.). A mere suspicion or the desire to obtain information cannot be a basis, in the event the accused refuses to answer, for an arrest without a warrant (Koechlin v. Waugh and Hamilton (1957), 118 C.C.C. 24, C.A. Ont.). The peace officer must have come to the conclusion that any ordinary person (the average man) would have made the same deduction in the same circumstances.
Applying this test, with which I would not take issue, to those facts of the case which he narrated, he concluded:
[TRANSLATION] Based on these events, which occurred on the ramp leading to the bridge, it must be proven that Roger Chassé committed a criminal offence.
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Having thus added a requirement to the test he had previously enunciated, that is proof that Chassé had committed the crime of dangerous driving, he then made a finding that Chassé had not committed the offence.
[TRANSLATION] After having heard the accused’s testimony, I cannot accept the suggestion that Chassé was driving dangerously.
And it is on the basis of this conclusion that he then found, as a fact, that the accused “did not have reasonable and probable grounds to arrest Chassé without a warrant”.
In other words, in his view, while a peace officer’s belief in the commission of the offence must be based on reasonable and probable grounds, such grounds for arrest under s. 450 cannot exist if it is found, as he did, that the offence was in fact not committed. It follows as of necessity that this would be equally applicable to a citizen acting under s. 449. Having made this finding, he did not, which was the only thing left to do, assess the accused’s conduct in the light of the duty of care set out in the charging section, s. 84(2). Instead, he found that, in any event, the force resorted to by the accused was excessive, referring to s. 26 of the Code, and found him guilty.
It is far from clear whether he was making this finding in the light of s. 25(4) or of s. 25(3) of the Code, or of both, though it would appear that he was by then dealing with the accused qua citizen making an arrest and no longer qua peace officer dealing with someone taking flight to avoid arrest, as is suggested from the following passages of his judgment.
[TRANSLATION] As the facts show, Chassé’s identity was easily established and the pursuit itself was pointless.
Officer Roberge is not covered or exonerated by s. 450 of the Criminal Code, and his status in New Brunswick at the time he fired the shots at Chassé’s car was no different from that of an ordinary citizen.
Even if the court had to apply ss. 25 and 26 of the Code to the accused, by using excessive force he did not meet the standard required by those two sections, and is therefore criminally responsible for his actions.
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And later on:
[TRANSLATION] Even if the accused had made the correct assumption, and I have found that he did not, then s. 26 of the C.C.C. applies and in view of all the circumstances, the description of the taxi, its licence number and the identification of the driver I find that, whether or not he had the authority to make an arrest in hot pursuit without a warrant, he exercised excessive force by using a firearm without justification in a reckless manner without lawful excuse.
The Court of Queen’s Bench
Quite properly the justice in appeal took his facts from the trial judge. He took issue with the test for arresting without a warrant set down by the trial judge and proceeded to enunciate what he considered the proper test as follows:
The question is not whether the accused in fact had reasonable and probable grounds but whether he honestly believed he had the reasonable and probable grounds to justify his course of action. ‘Reasonable and probable grounds’ are not invoked to support an information or a breathalizer demand but to substantiate a defence of justification. Any doubt on this question of fact must be given the accused.
(Emphasis added.)
Having found error of law on the part of the trial judge as to the test applicable he then proceeded, as he was perfectly entitled to do, to making his own finding, applying to the facts what he considered the proper test:
On this point and even though I did not hear the witnesses give their evidence, upon reading the transcript I am of opinion that the appellant honestly believed that the actions of the taxi driver constituted the offence of dangerous driving for which he could arrest without warrant and therefore he was in hot pursuit of a person in breach of the Criminal Code.
(Emphasis added.)
Finding that the police officer had retained his status of a peace officer even in New Brunswick, invoking R v. Shyffer (1910), 17 C.C.C. 191, he stated the next question thus “whether the appellant used excessive force for which he would be
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criminally liable under s. 26 of the Criminal Code”. He then found as a matter of fact that under the circumstances the police officer’s conduct did not “constitute excessive force so as to render one criminally responsible”. Though he made no mention specifically of s. 25(4), it is evident that he was assessing Roberge’s conduct in the light of the powers given a peace officer acting under s. 25(4). Indeed, had he dealt with the matter under s. 25(1) and (3) he did not need to concern himself with whether Roberge was then acting as a peace officer, because the offence alleged against Chassé is an indictable offence, one for which a citizen may under s. 449 arrest without a warrant. This would bring Roberge within s. 25(1) and (3), irrespective of whether he was a peace officer or not. The rest of his judgment deals with the degree of carelessness required for an offence under s. 84(2), a matter he did not need to deal with in view of his previous findings.
The Court of Appeal
That Court’s approach to the matter is totally different and I must say, with the greatest of respect, somewhat puzzling. The Court of Appeal took issue with the Queen’s Bench Justice varying the conclusion of fact made by the trial judge to the effect that constable Roberge was not authorized to arrest without a warrant, thereby implicitly agreeing with the test upon which the trial judge had predicated that finding. Indeed they said:
[TRANSLATION] After a careful reading of the transcript of this case, I find no reason to disagree with the impressions of the trial judge or his view of the facts. In a situation such as this a higher court must rely on the facts and the general view of the case taken by the trial judge.
They then approached the case by formulating the issue as follows:
[TRANSLATION] In disposing of this appeal, I find it is sufficient to examine the actions of the accused per se, without regard to the complications of having to decide as to the extent of the authority conferred on peace officers acting in a foreign territory. For all practical
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purposes, it is sufficient to decide the question of whether, in light of the circumstances surrounding the incident, the accused “used a firearm in a careless manner without lawful excuse”. Put even more simply, would the accused have been guilty of the offence if the territorial jurisdictions of New Brunswick and Quebec had been the same and the accused had been a peace officer for these territories?
A reading of this passage of their judgment gives the impression that the Court of Appeal was of the view that officer Roberge’s status in New Brunswick was of no relevance (that is whether he was a peace officer, authorized to arrest without a warrant or not), and that a finding of guilt under s. 84(2)(b) could therefore be made without a consideration of whether he retained the protection of s. 25(4) or at least s. 25(3). But that does not appear to have been what they meant. Later on in their judgment they reformulated the question as follows:
[TRANSLATION] The question which the appellate judge should have asked is therefore whether, when the accused decided to use his firearm, he was reasonably justified in doing so in light of the circumstances as a whole. The trial judge answered this question by saying:
At this particular time and place, however, I find as a fact that the accused did not have reasonable and probable grounds to arrest Chassé without a warrant…
(Emphasis added.)
It would therefore appear that the Court of Appeal, having accepted the trial judge’s conclusion that the situation was not one where an arrest could be made without a warrant, by either a citizen or a peace officer, dealt with the matter as such, and concluded that using a gun under the circumstances of the case was carelessness within s. 84(2)(b) and that Roberge had no lawful excuse. This is borne out by their concluding remarks where they say:
[TRANSLATION] Contrary to the finding of the appellate judge, I consider that there was negligence by respondent in using his firearm, and that, in light of the circumstances as a whole, no lawful excuse was established.
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There are many ways to approach this case as is well illustrated by the three judgments below.
As this Court and the Court of Appeal are limited to matters of law, and the Court of Queen’s Bench limited to some degree from interfering with the trial judge’s findings of fact, I propose to approach the case as follows.
As a first step we should consider whether the trial judge’s finding that constable Roberge could not arrest Mr. Chassé without a warrant was predicated on an error of law. If the answer is no, the trial judge’s finding cannot be reversed, that ends the matter, and constable Roberge’s conviction will stand. Indeed, if Roberge could not arrest without a warrant qua police officer or qua citizen, his use of the revolver to try to stop Chassé’s car comes, in my view, well within the type of carelessness contemplated by s. 84(2)(b). But if the trial judge’s finding is predicated on error of law, then we must, before accepting the Court of Queen’s Bench finding to the contrary that Roberge could arrest without a warrant, first see if the Queen’s Bench finding is the result of the proper test in law.
The test under s. 450(1)(b)
This Court, in R. v. Biron, [1976] 2 S.C.R. 56, laid down the test to be applied when determining whether a peace officer is arresting (to use the words of s. 450(1)(b)) “a person whom he finds committing a criminal offence”. Speaking for the majority, Martland J. (Judson, Ritchie, Pigeon and de Grandpré JJ. concurring), said the following (at p. 72):
My view is that the validity of an arrest under this paragraph must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made.
and further on (at p. 75):
The power of arrest which that paragraph gives has to be exercised promptly, yet, strictly speaking, it is impossible to say that an offence is committed until the party
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arrested has been found guilty by the courts. If this is the way in which this provision is to be construed, no peace officer can ever decide, when making an arrest without a warrant, that the person arrested is ‘committing a criminal offence’. In my opinion the wording used in para, (b), which is oversimplified, means that the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence.
(Emphasis added.)
Laskin C.J.C., dissenting, (Spence and Dickson JJ., concurring), would have laid down the following test, adopting that of Culliton C.J.S. in Attorney General for Saskatchewan v. Pritchard, (1961), 130 C.C.C. 61, 35 C.R. 150, 34 W.W.R. 458, where he had said (at pp. 65‑66 C.C.C, p. 154 C.R. and p. 462 W.W.R.), quoting that passage at p. 61 in the Biron decision:
While a peace officer has no right to arrest without a warrant a person he finds committing an offence unless an offence was in fact committed, nevertheless even if the officer was in error in so arresting, if he acted on reasonable and probable grounds he is given protection under s. 25 of the Code.
(Emphasis added.)
The disagreement between the judges of this Court in Biron was as regards the test when applicable to a party resisting arrest. I have underlined the test the minority recognized as applicable to the arresting officer when he is the accused. The majority would have the same test for the arresting party and the party being arrested. As regards the accused arrestor, I see no disagreement even though the majority refer only to apparently committing. Indeed, I do not read the test laid down by Martland J. as suggesting that it is sufficient that it be “apparent” to the police officer even though it would be unreasonable for the police officer to come to that conclusion. Surely it must be “appar-
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ent” to a reasonable person placed in the circumstances of the arresting officer at the time.
This is no different than what Culliton C.J.S. had said in Pritchard, an officer acting “on reasonable and probable grounds”. Therefore this Court in Biron was unanimous as regards the test for the arresting officer when he is the accused.
As Culliton C.J.S.’s formulation uses words with which lawyers and courts are more familiar and which furthermore are resorted to in the same section at s. 450(1)(a) I suggest we adopt that wording rather than that resorted to by the majority which comes from Lord Denning, M.R. in Wiltshire v. Barrett, [1965] 2 All E.R. 271 at pp. 273-74.
The Trial Judge’s Test
I have already set out earlier the passages of his judgment where he enunciates the test. He had originally laid down the test correctly (“The peace officer must have come to the conclusion that any ordinary person (the average man) would have made the same deduction in the same circumstances.”) but then erred in law by applying to the accused arresting officer the test the minority of this Court in Biron would have applied when trying the person resisting arrest, when he said:
[TRANSLATION] Based on these events, which occurred on the ramp leading to the bridge, it must be proven that Roger Chassé committed a criminal offence.
This error of law provided grounds for the Court of Queen’s Bench to substitute its findings of fact on that issue. The Court of Appeal was bound by that finding, as will be this Court, if the Court of Queen’s Bench applied the proper test.
The Court of Queen’s Bench Test
That Court stated the test as follows:
The question is not whether the accused in fact had reasonable and probable grounds but whether he honest-
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ly believed he had the reasonable and probable grounds to justify his course of action.
With respect, though closer to the proper test than the trial judge, the Court erred by introducing into the test the availability of a putative justification that Stuart, (Don Stuart, Canadian Criminal Law, 1982, Carswell, Toronto) defines as, at p. 381:
…situations where the accused genuinely believed that his act was justified in law but, on the facts as he believed them to be, no such legal justification existed.
I agree with Stuart’s further comments on the subject where he says (at pp. 381-82):
Consider the case of a police officer who genuinely but totally unreasonably believes that he can do anything with legal impunity if his primary aim is to enforce the law. The law has always placed a limitation in the form of a test of reasonableness. The law must continue to distinguish this area of justifications as a particularly delicate area in which value choices have to be reflected and in which some objectivity is inevitable. Our present law of justifications does not admit of any concept of putative justification41, It is often recognized that the situation must be judged on the facts perceived by the accused, usually on reasonable grounds, but this is quite different from the assertion that both the facts and law must be judged on the accused’s perception.
41 In Parrot (1979) 51 C.C.C. (2d) 539 at 545-46 (Ont. C.A.) (leave to appeal to the Supreme Court of Canada refused at 51 C.C.C. (2d) 539n (S.C.C.)) it was expressly held that a mistaken belief as to one’s legal obligation does not constitute a lawful excuse.
The Court of Appeal having not made its own finding on the issue, though entitled to do so because of that error of law on the part of the Court of Queen’s Bench, it is now incumbent upon this Court to do so.
Having read the record, I am of the view that, under the circumstances of this case, constable Roberge’s assessment of the situation to the effect that Mr. Chassé was committing the criminal offence of dangerous driving was made on reasonable and probable grounds (i.e., Mr. Chassé would
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have appeared to a reasonable person, placed in the same circumstances, to be committing that offence).
To arrive at this conclusion I take care not to try the issue as if Mr. Chassé was on trial for dangerous driving, as I suspect, from reading his judgment, the trial judge might have done. When determining what the constable saw, and when weighing the evidence, any contradiction giving rise to a reasonable doubt must inure to the benefit of the accused who is, as might be easily forgotten, in this case, the police officer. Mr. Chassé is entitled to the benefit of any reasonable doubt when tried for that offence, but equally so is constable Roberge when he sits in the prisoner’s dock.
Therefore, the contradictions in the evidence between Mr. Chassé and constable Roberge as to what happened, which might well be properly resolved in Chassé’s favour at his trial, I resolved here in Roberge’s favour.
I took, as I am bound to, the trial judge’s narrative of the facts which should be completed by adding the following which, in my view, tend to support Roberge’s version of what he saw at the bridge and which is not contested.
Mr. Chassé admitted to having had a couple of beers in the morning around 10 o’clock. The purchase made in Quebec was a case of beer and some cheese. Chassé, after driving away with a punctured tire and having abandoned his car on the Trans-Canada Highway, took a taxi home, carting with him his case of beer. A neighbour’s daughter, one Suzanne McGrath, saw him get out of the taxi carting his case of beer and stated:
[TRANSLATION]
Q. Did you notice anything else?
A. Yes, he was carrying a case of beer. I thought he had been drinking from the way he was walking.
Q. I assume you have seen Mr. Chassé walk on other occasions?
A. Yes.
Q. I have no further questions.
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Chassé’s son, Claude, said the R.C.M.P. arrived at their house some fifteen minutes after his father. He and his mother advised Chassé not to give a statement but rather to go to bed because they thought he had too much to drink. These facts, though not conclusive, are relevant as supporting the accused’s version as to the kind of driving he witnessed at the entrance of the bridge. His driving after crossing the bridge is also supportive of that prior to crossing. True, he explains it as resulting from fear, alleging that he did not know Roberge was a Quebec police officer. But any doubt as to the truthfulness of this explanation must be resolved in favour of Roberge. Chassé did not use his radio to call for help, he only used it when he was on the Trans-Canada Highway, with a punctured tire, to call a taxi to go home, carting his case of beer. He did not go to the police. Prior to the puncturing of his tire, he drove through the intersections of Arran and Minto streets; had he turned right he could have gone to the taxi stand, or left, and he would be at the R.C.M.P. station. His explanation as to why he did not in this way take refuge from Roberge is, to say the least, nebulous. Witness the following passage of his testimony:
[TRANSLATION]
Q. I see—you were upset, you were afraid. Now when you saw this fellow leave the bridge and follow you, and you got to the intersection of Water, or rather Roseberry, and Subway, if you had turned left, wouldn’t that have taken you to the R.C.M.P. station?
A. Yes.
Q. It was nearby?
A. If I turned right it would take me to the stand. If I turned left it would take me to the police station.
Q. Yes. Why didn’t you go to either of these places?
A. I was going to the stand, but there were too many cars behind me, there were cars behind, and when I saw that, I cut away, that is when I cut away and took Minto.
Q. I see.
A. There were other cars.
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Q. But you were going to go to the stand?
A. I was no longer on that side.
Q. Okay. Then you did not think of going to the police station?
A. I did not think of going to the police station, the road was right there.
Q. Yes, but you were being pursued by a maniac, you were afraid, you were upset: the best place in the world to go was the police station.
A. The taxi stand was good also.
Q. The stand was good also.
A. Yes, sir.
Q. But you did not go there?
A. There were cars, and as a result—
Q. There were cars, okay. When you went onto Minto Street and came to the intersection of Arran and Minto, if you turned to the left it would take you to another police station close by?
A. A little further on, yes.
Q. A little, but not very far.
A. No.
Q. R.C.M.P. County Detachment, wasn’t it?
A. (Inaudible).
Q. Yes. But you didn’t think of going there: that would have been a good place to go.
A. I was going home.
Q. Pardon?
A. I was going home.
Q. What kind of action could have been taken at home, sir, that a dozen members of the R.C.M.P. who were sitting there in their station could not give you? What greater protection did you have at home?
A. I was at home, okay?
Q. If you were afraid that some kind of maniac was following you, instead of going home would you not have had better protection by making a left turn and going to the police station?
A. Yes, that would have been a good idea.
Q. Why didn’t you go there? You wanted to go home?
A. Yes.
His explanation as to the siren is as nebulous as that regarding his not going to the police. Finally, it is difficult to accept that a taxi driver of long experience, who is called upon to drive customers
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to the Quebec side and who, living on the border, goes frequently to Quebec for personal reasons, as he did in this case to buy beer, does not recognize the uniform of the Quebec Police Force.
As a result, I agree with the Court of Queen’s Bench Justice, sitting on appeal, that Roberge had reasonable and probable grounds to believe that Chassé was committing the offence of dangerous driving, and that he therefore started his chase in Quebec qua a peace officer with the protection afforded him under s. 25(4).
The next question we must then deal with is whether at the time he used his gun in New Brunswick he still had the protection of s. 25(4) as he is not a peace officer under the laws of New Brunswick, and he was not assisting a peace officer of that province. This question is of some importance, as the protection afforded an arresting citizen under s. 25(1) is, by s. 25(3), much more limited than that under s. 25(4). Furthermore, whatever is justified for the purpose of making an arrest under s. 25(1) is in itself, quite apart from the limitations set out in s. 25(3), somewhat more limited than what is justified “to prevent the escape by flight” in order “to avoid arrest”.
Angers J., of the Court of Queen’s Bench, relied on R. v. Shyffer, supra, and concluded that he still was a peace officer. That case is of little help. Clement J., of the Supreme Court of British Columbia, seems to have taken as being the law applicable to his case, as it had been conceded by the parties, that (at p. 192) “the police of one province can arrest without warrant a person charged with having committed a crime in another province only where the crime is one for which the accused could have been arrested without warrant in the province where the crime was committed, or where the accused is escaping fresh pursuit: Criminal Code ss. 30, 33 and 649.”
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The difference between s. 649 of the Criminal Code in 1910 and s. 449(1)(b) of today’s Code are, for the purpose of the question we are now considering, of no consequence.
649. Any one may arrest without warrant a person whom he, on reasonable and probable grounds, believes to have committed a criminal offence and to be escaping from, and to be freshly pursued by, those whom the person arresting, on reasonable and probable grounds, believes to have lawful authority to arrest such person.
That section did not (nor does today’s s. 449(1)(b)) support the proposition advanced in Shyffer. I have searched to no avail for authority on the matter. In any event, my view is that, in a country such as ours, where there are over 15,000 kilometres of interprovincial and territorial frontiers, it is unreasonable to make so drastic a variance in the protection afforded our police officers under s. 25 when they are in pursuit of a criminal (most pursuits often involve crimes more heinous than the one under consideration in this case) dependent solely upon the officer crossing a border. True, a mistaken belief on the part of the officer that he is still within his province will afford him the protection of s. 25(4). On the other hand, even if he does know he has changed provinces, it is in my view, seriously and unnecessarily hampering police work to reduce a peace officer to the rank of an ordinary citizen and to limit, by taking away part of his protection under s. 25, through a variation of the nature and purpose of what he is authorized to do, the force he is entitled to use dependent upon his moving a few feet further in pursuit of a criminal.
Under s. 25(1), the purpose is to arrest, while under s. 25(4) the purpose is to prevent escape from immediate arrest. As I have already said, this difference of purpose has a direct bearing on the nature of the force the reasonableness of which is to be assessed.
This case, where Chassé could have been easily arrested later on in the day using the licence plates of the taxi he was driving to identify him provides an illustration. As a citizen, if such were Roberge’s status, he would not have (except if he were assisting a peace officer) been justified in the circumstances resorting to any force, and his course of
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action would have been to report the matter to the local police. Arrest did not require carrying on the dangerous pursuit, let alone using a revolver to immobilize the car. As a peace officer, if that be his status, immediate arrest justified his persistence in the pursuit and the eventual use of his revolver as a final resort to immobilize the car. I cannot accept that the policy considerations that brought about s. 25(4) should be defeated by placing the police officer in jeopardy upon the mere crossing of a provincial border. The policy might be more easily understood had Chassé been found driving a getaway car after committing a hold-up; or, upon arriving at home, had he reported his car stolen and denied he had been driving it, specially so if the car had been involved in a hit and run incident where a pedestrian was killed. Indeed, immediate arrest, and the need for pursuit as a means to that end are essential to policy considerations that should not be defeated by stripping peace officers in the middle of a chase of their protection under s. 25(4).
I would therefore find that as a matter of law a peace officer who had lawful authority to arrest a person under s. 450 in one province and is pursuing that person, retains, for the purpose of s. 25(4), his status of a peace officer in another province inasmuch as the pursuit had commenced lawfully in his jurisdiction and as long as such pursuit is fresh.
I would add one reservation.
The police officer should endeavour to contact the local peace officers as soon as is possible, even during the pursuit, circumstances permitting. Once the local authorities have taken over the pursuit, he ceases to be a peace officer and becomes then a person assisting peace officers under s. 449(1)(b), and, as such, will continue enjoying the protection of s. 25(4).
This, to me, seems a desirable temporary extension of his peace officer status which logically fills
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in a gap between the time when he would otherwise cease to be a peace officer and when he becomes a person assisting peace officers.
Angers J. was in my view right in law when assessing the reasonableness of Roberge’s use of his firearm. In making his assessment on the facts of the case, he found that the force resorted to under the circumstances was not excessive, which by implication means that the force had become “necessary to prevent the escape by flight” and that “the escape [could not] be prevented by reasonable means in a less violent manner”. That finding is one of fact with which this Court cannot and should not interfere, unless we find that his conclusion is unreasonable and cannot be supported by the evidence, keeping in mind that this Court is limited to matters of law. His conclusion could be said to be unreasonable or unsupported by the evidence as a matter of law only if we find that there is no evidence upon which such a finding could reasonably be made. This is clearly not the case. Roberge had more than once attempted to stop the car by signalling, activating his siren, overtaking and blocking the car with his own, all to no avail. Furthermore, the escalation of force resorted to was not disproportionate to that of the suspicion Chassé must have created in Roberge’s mind as he persisted in his flight notwithstanding all those warnings. He behaved, especially after the warning shots, as if risking being shot was better for him than what might be discovered if apprehended. Roberge’s conduct must be assessed in the light of the state of mind of a reasonable person reacting not to what was discovered after the incident but to what Chassé’s conduct in escaping suggested might be discovered upon immediate arrest. Short of requiring that he give up immediate arrest and opt for eventual arrest, an alternative he needed not in law revert to, I am unable to say that there is no evidence upon which the judge could predicate his finding that the means resorted to by Roberge for an immediate arrest were not excessive. Furthermore, during the chase he had, using his radio, contacted the Quebec Police Station and requested that the R.C.M.P. in New Brunswick be alerted. When Chassé drove off with the punctured tire, constable Roberge, on his way to the R.C.M.P. station, saw an officer of that
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force and immediately reported the incident to him.
A final observation. I should not want my comments in support of the policy considerations that justify, in my opinion, a distinction being made under s. 25(1) and s. 25(4), by which I extend temporarily a peace officer’s status, to be considered as being in any way a comment supporting or taking exception to the wide powers given peace officers in dealing with flight from arrest under s. 25(4). Section 25(4) is a codification of the old common law applicable to fleeing felons, offenders that would in those days, if found guilty, most certainly be executed. Many suggestions have been made to Parliament as regards this frightful arsenal peace officers enjoy (see, amongst others, the Ouimet Committee Report), particularly concerning offences that do not indicate dangerousness on the part of the offender, such as shoplifting, fraud, gambling. We have extended to all indictable offences a common law principle that was intended to be applied only to felons. This is a choice Parliament has made and which the courts cannot defeat.
To conclude, I would therefore allow the appeal, quash the Court of Appeal’s judgment and restore the acquittal entered by the Court of Queen’s Bench.
Appeal allowed.
Solicitors for the appellant: McIntyre & McIntyre, Dalhousie.
Solicitor for the respondent: J. Paul Thériault, Moncton.
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