Supreme Court of Canada
Poupart v. Lafortune, [1974] S.C.R. 175
Date: 1973-05-07
Roger Poupart (Plaintiff)
Appellant;
and
Claude Lafortune (Defendant)
Respondent.
1972: May 25; 1973: May 7.
Present: Fauteux C.J. and Abbott, Martland,
Judson, Ritchie, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
Criminal law—Armed robbery—Person
accidentally injured by police officer—Officer not liable for damages—Criminal
Code, 1970 (Can.), c. C-34, s. 25(4).
Appellant, who is a chartered accountant, was
accidentally injured by a shot fired by respondent, a police officer, during
the perpetration of an armed robbery on certain business premises where he was
engaged in auditing the company’s books. The accident occurred in a corridor
where boxes were stacked along one wall, thus leaving a narrow passage.
Respondent, having got to the entrance of the corridor, saw two of the three
gunmen at the other end turning to the left in order to escape into another
corridor. He then fired three times in their direction hitting the appellant
whom he had not seen and who was immobilized in the corridor after being forced
by one of the gunmen to remain there while he was making his escape. The
decision of the Superior Court ordering respondent to pay damages was reversed
by the Court of Appeal. Hence the appeal to this Court.
Held: The
appeal should be dismissed.
The justification created by the provisions
of s. 25(4) of the Criminal Code relieves the police officer of any
civil or criminal liability, not only in respect of the fugitive but also in
respect of any person who accidentally becomes an innocent victim of the force
used by such an officer in the circumstances described in those provisions and
established by the evidence.
With regards to negligence attributed to
respondent in the Superior Court, it might be inferred without doing violence
to the evidence that appellant was partially or totally out of the view of
respondent while he was in the clear space between boxes allowing access to an
office and before he turned around in the direction of the shots fired. Even if
appellant was temporarily within respondent’s range of view, in law this could
not be grounds for holding the latter liable
[Page 176]
and requiring in such circumstances a
standard of care greater than that required of a reasonable man. Respondent was
not engaged merely in performing an act permitted by law, but he was engaged in
the hazardous performance of a grave duty imposed on him by law. And he incurs
no liability for damage caused to another when without negligence he does
precisely what the legislature requires him to do.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal
Side, Province of Quebec, reversing a decision of the Superior Court. Appeal
dismissed.
Jules O. Duchesneau, for the plaintiff,
appellant.
Hervé Bélanger, for the defendant,
respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—Appellant is appealing against
a decision of the Court of Appeal reversing a judgment of the Superior Court
which ordered respondent, an officer of the Montreal City Police, to pay him
the sum of $39,049.25 in damages. These damages resulted from an injury
accidentally inflicted on appellant by a short fired by respondent in the
course of a police action, during the perpetration of an armed robbery on the
business premises of the Slater Shoe (Canada) Company.
The two lower courts were in substantial
agreement on the facts relevant to a consideration of the questions of law
raised in this appeal. I need only summarize these facts with reference to the
following diagram, produced at the hearing as Exhibit P-6:
[Page 177]
The offices of the Slater Shoe (Canada) Company
are on the second floor of a building situated at the corner of de Normanville
Street and Rosemont Boulevard. The entrance on Rosemont Boulevard leads by a
stairway to a waiting room, adjoining which are an information desk and the
office of the Secretary-Treasurer of the company, André Giguère. In the centre
of the premises are the main office and the sample room, which may be reached
either by corridor “A” on one side or corridor “C” on the other. These two
corridors are connected at the rear by corridor “B”, which has three offices
opening onto it, one of which, that in the centre, is the office of
Mr. Gibault, the company president. The accident in question occurred in
corridor “A”, which had on its entire length, against the wall adjacent to the
main office and the sample room, boxes stacked six to seven feet high and two
feet wide, thus leaving a passage of only three feet six inches.
On the day in question, December 21, 1962, at
about three-thirty or three forty-five in the afternoon, there were at least
ten persons on the premises, including appellant Poupart, Jean-Guy Hétu and Richard
Brunet, all three being chartered accountants, who were engaged in auditing the
company’s books. Poupart was talking to Giguère in the latter’s office, when
three gunmen, subsequently identified as Bernier, Bonnin and Périneau, and
armed respectively with a machine gun, a.45 calibre revolver and a
[Page 178]
.22 calibre revolver, suddenly burst in and
spread out through the premises. They assembled all those present, if not
everybody, into the main office at gunpoint, physical violence being used if required,
and made them line up against the wall adjacent to corridor “A”. They
immediately demanded to know where the “payroll money” was. The auditors
Poupart, Hétu and Brunet, to whom their question was mainly directed, replied
that they did not work for the firm and so knew nothing about it. While Bernier
kept the group covered the other two gunmen searched the premises, gun in hand,
but without finding any money. In front of the group gathered in the main
office Bernier singled out Hétu and, pointing the machine gun towards the
latter’s legs, told him he would count to five, by which time someone had
better provide the information required; he counted to five; drew the trigger
of his weapon; a click was heard; but no shot was fired. At this point officers
Lafortune and Picard, alerted by radio to the fact that an armed robbery was in
progress at this location, arrived and rushed into the office. Someone shouted
“Police”. The officers were greeted by shots and subsequently exchanged shots
with the gunmen.
The following, according to the part of
Lafortune’s testimony cited in the judgment at trial, is a summary of what
happened between the arrival of the police officers and the time the accident
took place. As he entered the firm’s offices Lafortune, looking through the
glass partition adjoining the information desk, he saw a group of people in the
main office with their hands up. He crouched down as he went round the counter
of the reception desk, intending to surprise the thieves from behind. When he
got to the end of the counter he saw Bernier and Bonnin, who were rather
standing midway between the second and third columns in corridor “C”. He aimed
his gun at them to hold them at bay, and as he did so Périneau came out of
Giguère’s office and fired in his direction. Lafortune returned the fire and
shouted “Everybody down”. Then, as he turned back towards Bonnin and Bernier,
he saw the latter raise his machine
[Page 179]
gun and try to fire at him. Lafortune fired
again and Bernier and Bonnin ran through the main office towards corridor “A”.
Lafortune was acquainted with the premises, having been there in response to an
earlier call, and knew that corridor “A” could be reached through the waiting
room at the front, without going through the main office. He ran that way to
cut off the retreat of the two gunmen. When he got to the entrance of the
corridor, he saw them at the other end turning to the left in order to escape
into corridor “B”. Lafortune fired three times in their direction. Immediately
after his third shot, he saw in corridor “A” for the first time an individual
clutching his left shoulder: this was appellant, who, as we shall see from his
testimony, had just been hit, and who took refuge in the entrance to the room
where the stationery is kept, at point X on the diagram. As the two gunmen had
disappeared, Bonnin jumping outside through a window and Bernier continuing
along corridor “B”, Lafortune immediately went to lend assistance to his
associate Picard in disarming and capturing Périneau, who was in Giguère’s
office.
Lafortune summarized what occurred on the
premises after the accident as follows. As Périneau had been captured,
Lafortune went into the main office and ordered the employees to stay down,
telling them that a third gunman was still on the premises. Waiting for
developments, he concealed himself behind the third column in corridor “C”. A
few moments later, he at first saw the barrel of Bernier’s machine gun
protruding past the corner of corridors “B” and “C”, then the head of Bernier himself,
who immediately disappeared as Lafortune fired at him. Lafortune remained where
he was while Picard left the premises to take steps for the arrest of Bonnin,
who had escaped. When Picard returned with police reinforcements he proceeded
to join Lafortune in corridor “B”. Picard broke down the door of Gibault’s
office, and the two men found Bernier inside, holding Gibault hostage. Bernier
was then apprehended.
[Page 180]
On his part appellant Poupart testified, in
short, concerning the circumstances immediately preceding the accident, that as
Bernier was backing out of the main office while facing him, Bernier forced
Poupart, using his machine gun, to follow him into corridor “A” and remain
there while he was making his escape towards the rear of the corridor; that
while being then immobilized in the corridor opposite the entrance to the main
office, Poupart heard shots coming from the front end of the corridor behind
him; and as he turned around in this direction he was hit in the left shoulder.
He indicated at point Y on the diagram where he was hit, and point X, the
entrance to the stationery room where he took refuge.
It is hardly necessary, but very relevant
nonetheless, to add to this brief account of the circumstances essential for
consideration of the questions of law that the foregoing events, especially
those which took place between the time the police officers arrived and the
moment the accident occurred, developed swiftly in an atmosphere of collective
tension, which, be it noted, was quite properly regarded by several witnesses
as responsible for the few discrepancies or conflicts of minor importance
contained in the evidence;
In his defence to the damage suit brought
against him respondent pleaded the following provisions of s. 25 of the Criminal
Code:
25. (1) …
(2) …
(3) …
(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 Superior Court justified as follows its
judgment ordering officer Lafortune to pay compensation for the damage
resulting from this
[Page 181]
unfortunate accident: (i) Relying on the rule
followed by the courts in automobile accident cases, and stated in Swartz v.
Wills as
follows:
Where there is nothing to obstruct the
vision and there is a duty to look, it is negligence not to see what is clearly
visible
and also being of the opinion that, even in
circumstances where the atmosphere is heightened by tension, a police officer
should, by reason of the training he has received, show more “sang-froid” and
control than another person would, it held that the fact that officer Lafortune
did not see appellant in the corridor constituted an act of negligence; (ii) it
then attributed a second element of negligence to the officer, on account of
his so-called lack of skill with shooting firearms, inferred from the fact that
each of the three bullets fired by him in corridor “A” hit a target other than
the gunmen; (iii) finally, after examining the question of whether the gunmen
were in fact fleeing at the time Lafortune fired in their direction, and
whether the officer was in law protected by the aforementioned provisions of
s. 25 against a damage suit by an innocent victim, as he is against an action
by the fugitive whose escape he seeks to prevent, the learned judge stated his
adoption of the position most favourable to respondent, referred to the
decisions of this Court in Prietsman v. Colangelo et al. and Beim v. Goyer, and held that in view of the two
elements of negligence previously mentioned, Lafortune could not avail himself
of the protection of these provisions of the Code.
In the Court of Appeal Rivard J.A., in reasons
concurred in by Choquette J.A., after summarizing the facts clarified the
meaning and scope of the decisions of this Court in the Priestman and Beim
cases, as well as the distinctions attaching to the particular
circumstances of each of these cases and the present one, declared that this
was an emergency situation compelling resort to severe measures, that the
firearm was the means Lafortune had to adopt to protect those
[Page 182]
present, and himself, as well as to prevent the
gunmen from escaping and ensure their arrest, and that having regard to the
circumstances he was dealing with, the reproach made against Lafortune by the
Superior Court, of having negligently performed his duty, could not be
justified. Owen J.A., dissenting, only stated that in his opinion no error in
the Superior Court judgment had been shown on behalf of Lafortune.
Hence the appeal by Poupart against that
judgment dismissing his action.
Two observations must be made at once, with the
greatest respect, regarding certain doubts expressed in the reasons for
judgment of the learned trial judge. First, I should say that if only because
of the decision of this Court in the Priestman case supra, there
is no reason to doubt, in my view, that the justification created by the
aforementioned provisions of s. 25 relieves the police officer of any
civil or criminal liability, not only in respect of the fugitive but also in
respect of any person who accidentally becomes an innocent victim of the force
used by such an officer in the circumstances described in those provisions. And
I would add that, if only because of the evidence that Bonnin leapt from a
second-storey window when Lafortune fired at him and Bernier, there seems
little doubt that the two gunmen were really taking flight.
In short, subject to consideration of the
allegation of negligence, I feel that all the circumstances necessary for
Lafortune to be entitled to the justification provided in the aforementioned
provisions of s. 25 are present and fully established by the evidence.
The allegation of negligence: Poupart’s
testimony indicates that he was hit in his left shoulder by a bullet when,
after standing still in the corridor opposite the entrance to the main office,
he turned around in the direction of the first two shots fired at the gunmen.
Before making this movement, was he in the clear
[Page 183]
space left almost at the centre of the row of
boxes to allow access to the main office, and was he therefore, for a moment or
so, out of the view of Lafortune, partially or totally, so that he could not be
said to have been “clearly visible” to the latter, who, running, was arriving
at the end of the corridor to cut off any possible retreat by the gunmen? This
might certainly be inferred without doing violence to the evidence. Lafortune
asserted that he did not see appellant while trying to prevent the escape of
the gunmen by firing in their direction. Indeed, even if Poupart was at that
moment temporarily within Lafortune’s range of vision, I am respectfully of the
opinion that in law this could not be grounds for holding the police officer
liable by relying, moreover, on an analogy which cannot be regarded as valid,
and by requiring in addition, in such circumstances, a standard of care greater
than that required of a reasonable man.
With regard to the analogy drawn by the trial
judge between the case of the driver of an automobile, and the case of a police
officer placed in the circumstances under consideration, I would say that in
contrast with the driver of an automobile, Lafortune was not engaged merely in
performing an act permitted by law, but, which is quite a different matter, as
was pointed out at p. 618 in the Priestman case supra, he
was engaged in the hazardous performance of a grave duty imposed on him by law.
In carrying out such a duty a peace officer must undoubtedly refrain from
making any unjustifiable use of the powers relating to it. This principle was
recognized in Regina v. Waterfield and Another, at p. 170 et seq., and
recently recalled in this Court in the as yet unpublished decision of Knowlton
v. The Queen. However, while a police officer is not relieved of a duty to
take reasonable care, that is care the degree of which must be determined in
relation to the particular
[Page 184]
circumstances of the case to be decided, the
actions of Lafortune cannot, in a case like that before the Court, be evaluated
as they would be if it were a case in which the precautions to be taken in
accordance with the duty not to injure others were not conditioned by the
requirements of a public duty. In short, the police officer incurs no liability
for damage caused to another when without negligence he does precisely what the
legislature requires him to do; see Priestman case supra. Interpreted
otherwise the justification provided by s. 25(4) would be reduced to a
nullity.
In all defence, therefore, I would say with
regard to the legal grounds given in support of the judgment of first instance
that the Court of Appeal properly intervened to reverse that judgment, and, for
the reasons given above and in the judgment a quo, I would dismiss the
appeal with costs.
Appeal dismissed with costs.
Solicitors for the plaintiff, Appellant:
Smith, Anglin, Laing, Weldon & Courtois, Montreal.
Solicitors for the defendant, respondent:
Côté, Péloquin, Mercier, Normandin, Ducharme & Bouchard, Montreal.
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