Cluett v. The Queen

Le Dain J.‑‑This appeal raises issues concerning the charge to a jury on the lawful or justified use of force by a police officer and on the mental element required for aiding or abetting manslaughter, as well as the adequacy of the trial judge's summary of the evidence, in so far as the possibility of manslaughter was concerned.

The appeal is of right from the judgment of the Supreme Court of Nova Scotia, Appeal Division, on November 29, 1982 allowing the Crown's appeal against the acquittal of the appellant of the charge of second degree murder and ordering a new trial of the appellant on the included offence of manslaughter.

I

The voluminous evidence is summarized in the reasons for judgment of the Court of Appeal. I venture a brief statement of facts which it was open to the jury to find in order to indicate the general background of the issues in the appeal.

On July 27, 1980 the appellant, a police officer in Dartmouth, Nova Scotia, and a fellow constable, Harry O'Donnell, were called to the Angus L. Macdonald Bridge, which connects Dartmouth and Halifax. The bridge traffic officer was having difficulty removing a pedestrian who was interfering with traffic by walking on the traffic lanes while attempting to hitch‑hike. The constables had also received a report that a patient was missing from the Nova Scotia Hospital and could have gone in the direction of the bridge. By the time the two officers reached the bridge, the pedestrian, Earle Hollett, had moved into the intersection of Nantucket Avenue and Wyse Road, a busy junction near the bridge on the Dartmouth side, where he appeared to be obstructing traffic. The constables parked their police van, and O'Donnell called Hollett over. The two spoke briefly. Hollett then turned and walked away. O'Donnell got out of the van and went after Hollett. A struggle between them ensued. O'Donnell gave a shout. The appellant, who had apparently not seen what was happening up to this point, came around the back of the police van to O'Donnell's aid. He saw that Hollett had hold of O'Donnell's hair. The appellant ordered Hollett to release O'Donnell. When Hollett failed to do so, the appellant told him he was "under arrest for assaulting a police officer". The appellant then attempted to put a restraining hold on Hollett while calling for help on his belt radio. When Hollett would not release his hold on O'Donnell's hair O'Donnell struck him repeatedly in the head and chest. Hollett was eventually subdued with the help of two other police officers. He was put in the back of the police van and taken to the Dartmouth General Hospital. On arrival at the hospital Hollett did not seem critically injured. Soon afterwards, however, he suffered a respiratory arrest and fell into a coma. He was taken to the Victoria General Hospital in Halifax, where it was discovered that he suffered from ankylosing spondylitis, an arthritic disease of the spine that had rendered it rigid and brittle and particularly vulnerable to serious injury from the kind of blows he had received. Hollett died at the Victoria General Hospital on August 11, 1980. In the opinion of the Chief Medical Officer, who performed the autopsy, the cause of death was cerebral anoxia, or lack of oxygen to the brain, as a result of respiratory arrest which was a direct complication of the injuries Hollett had received in the area of the neck and upper chest.

The appellant and Constable O'Donnell were charged jointly with second degree murder and tried before Clarke J. of the Supreme Court of Nova Scotia, sitting with a jury. O'Donnell was convicted of manslaughter. The appellant was acquitted.

The Supreme Court of Nova Scotia, Appeal Division (1982), 3 C.C.C. (3d) 333, dismissed the appeal against the conviction of Constable O'Donnell but allowed the appeal against the acquittal of the appellant on the grounds that the trial judge had misdirected the jury as to the justified use of force by a police officer and as to the mental element required for aiding or abetting manslaughter and had failed to point out the evidence that could support a finding of manslaughter against the appellant. In ordering a new trial of the appellant on the included offence of manslaughter the Court of Appeal held that the verdict would not necessarily have been the same had the trial judge properly instructed the jury.

The appellant contends that the Court of Appeal erred in these conclusions.

These then are the issues in the appeal:

(a) Did the Court of Appeal err in holding that the trial judge misdirected the jury as to the lawful or justified use of force by a police officer?

(b) Did the Court of Appeal err in holding that the trial judge misdirected the jury as to the mental element required for aiding or abetting manslaughter?

(c) Did the Court of Appeal err in holding that the trial judge failed to indicate the evidence that could support a finding of manslaughter against the appellant?

II

In his directions to the jury concerning the lawful or justified use of force by police officers the trial judge referred to several sections of the Criminal Code , including s. 27 respecting the use of force to prevent the commission of an offence, ss. 34 and 35 respecting the use of force in self defence and s. 26 respecting the use of excessive force. The direction which was found by the Court of Appeal to have been in error was based on s. 25(1) of the Code, which reads as follows:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable and probable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

After referring to the defence contention that the police constables were carrying out their duties under the provincial Motor Vehicle Act, the by‑laws of the Halifax‑Dartmouth Bridge Commission and the provincial Hospitals Act when the encounter with Hollett began, and after reading s. 25 to the jury, the trial judge made the following statements, purporting to be based on the terms of s. 25, concerning the justified use of force by police officers:

...again, under that Section 25, every person acting as a peace officer or in aid of a peace officer in the administration or enforcement of the law 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.

...

It appears to me that in responding to the call of Sergeant Purcell, the police officers can be said to be carrying out an investigation within their authority. They responded to the call as police officers. They went there as police officers. They approached Hollett in the course of their duties as police officers. Whether in the subsequent events which occurred after Constable O'Donnell left the driver's seat of the van and Cluett left the passenger seat of the van, the Constables abused their duty and authority in any way, is a matter I leave with you. Police officers are authorized to use such force as is reasonable, proper and necessary to carry out their duties, providing that no wanton or unnecessary violence is imposed. What is reasonable and proper in the particular circumstance, and in the particular case, will depend upon all the circumstances. It is not possible to lay down any hard and fast rule, except the test of reasonableness. If the police officer in carrying out his authority acts on reasonable and probable grounds, he is justified in doing what he is required to do and in using as much force as is necessary for that purpose.

...

Therefore, if a police officer is doing anything in the administration or enforcement of the law and who is required or authorized to do so, he is, if acting on reasonable and probable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

The Court of Appeal found these statements to be a misdirection by the trial judge as to the lawful or justified use of force by a police officer. Jones J.A., who delivered the unanimous judgment of the Court, appears to have concluded from the context in which the statements were made that the trial judge was of the view and conveyed to the jury the impression that a police officer was justified in using necessary force to carry out an investigation short of arrest. After referring to a statement to the jury by counsel for Constable O'Donnell suggesting that the issue was whether the constables had used excessive force in investigating a complaint, Jones J.A. said (at pp. 345‑47):

That statement was based on the legal premise that even if Mr. Hollett had not been arrested the officers were entitled to use whatever force was necessary to have him return to the van in order to identify him and complete the investigations they had undertaken.

It is apparent that the learned trial judge accepted that position. He gave the jury extensive instructions on a number of provisions of the Motor Vehicle Act, the Hospitals Act, 1977 (N.S.), c. 45, and the Bridge Commission Regulations, all intended to establish that the officers had reason to believe that Mr. Hollett was committing a number of offences and hence the officers were in the lawful execution of their duty when they approached him. After referring to these various provisions the trial judge instructed the jury on the provisions of s. 25 of the Criminal Code and the powers of a police officer under the Police Act, 1974 (N.S.), c. 9. The trial judge then stated [and here Jones J.A. quoted the second of the three passages quoted above from the trial judge's charge to the jury].

...

It is necessary to examine whether the trial judge was correct in instructing the jury that under s. 25 of the Code the officers were justified in using as much force as necessary to generally carry out the lawful execution of their duty. With respect, I am unable to agree that s. 25 of the Code or the common law supports that position. I should note at the outset that I have no doubt on the evidence that the officers were in lawful execution of their duty, certainly up to the time that they called Mr. Hollett over to the van....

The undoubted duty of a police officer is to investigate crimes and to ask questions of citizens for that purpose, and in some circumstances to insist on answers, but that does not imply any right to detain a person or to use force for that purpose short of arrest.

After referring to several decisions with particular reference to the power of arrest, including the judgment of this Court in R. v. Biron, [1976] 2 S.C.R. 56, Jones J.A. concluded on this issue as follows (at pp. 351‑52):

There should be no doubt that the police are not entitled to use force unless an arrest is warranted and has been properly made. The obligation to inform a citizen of the reasons for arrest ensures that police officers will exercise their powers properly and with some degree of discretion.

From these authorities I think it is clear that the direction in this case regarding the use of force was in error. If the constables failed to arrest Mr. Hollett when they first approached him and to give him the reasons why he was being arrested the arrest was unlawful and the officers were not acting in the execution of their duty. In the result they were not justified in using force by virtue of s. 25 of the Code. Their apprehension of Mr. Hollett constituted an assault which he was entitled to resist at common law and by virtue of s. 34(1) of the Code which provides:

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in re‑ pelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Counsel for the appellant conceded that the direction of the trial judge with respect to the use of force, if viewed in isolation from the particular position of the appellant, might have left the impression with the jury that a police officer was justified in using necessary force to restrain a person short of arrest for the purpose of carrying out an investigation, and that this would have been an error. He submitted, however, that in considering the effect of this direction, in so far as the appellant was concerned, the Court of Appeal failed to take into account the different positions of the appellant and O'Donnell with respect to the power of arrest.

The appellant testified that he had not observed how the struggle between O'Donnell and Hollett began, that when he responded to O'Donnell's cry he called on Hollett to release his hold on O'Donnell's head, and that when Hollett refused to do so, the appellant arrested him, informing him that he was being arrested for assaulting a police officer. Because of the importance in this case of the difference in the positions of O'Donnell and the appellant with respect to the power of arrest I think it is desirable to quote the following testimony of the appellant as to what happened after O'Donnell left the van to go after Hollett:

Q. You made mention that he walked away. Do you know in what direction he walked?

A. Yes, it was in a southwesterly direction away from the driver's door of the van.

Q. At that time, do you know how far he walked?

A. No, Sir. I lost sight of him once he got away from the driver's door.

Q. What if anything did Constable O'Donnell do at that time?

A. Constable O'Donnell got out of the driver's door of the truck and went in the direction of the man.

Q. For what period of time was he.. was he in your sight at all times?

A. No, I lost sight of Constable O'Donnell as well, so then I just stayed seated in the passenger seat and I was looking out front, and I was looking across to the Esso Centre and I noticed a group of people there getting gas and, just glaring around and then I heard a holler.

Q. Now, what type of holler did you hear?

A. It was..it's a little difficult to describe it was just a loud holler. Not a moan but like somebody hollering like a "AHHHHH" type of thing. And, my automatic reaction being two‑man and when the other guy leaves the van, I just leaned forward and looked, and at that time I saw that the man had Constable O'Donnell in the top of the head in a bent over at the waist position.

...

Q. And, what did you do upon your arrival?

A. Upon the arrival I said on two occasions to the man, I said "Get your arms off my partner's head". I said that twice, one after another. "Get your hands off my partner's head".

Q. What was Constable O'Donnell doing at this time?

A. He was hollering at the top of his voice "Get the...guy off...it hurts... get him off".

Q. And, what if anything did Mr. Hollett do at this time?

A. Didn't seem to jar him. From what I observed as I mentioned he was standing there, his arms were just anchored right in the top of Constable O'Donnell's hair and his arms straight, and his arms and his head were quivering just like he was cold, and he had a moaning like "Ahhh ...ssss ...ahhh" (?) that type of groaning coming from him. So, at that time, I said "You're under arrest for assaulting a police officer".

Constable O'Donnell also testified that the appellant arrested Hollett, informing him that he was being arrested for assaulting a police officer, after telling him to release his hold on O'Donnell's hair.

In his charge to the jury the trial judge stressed the importance of bearing in mind that there were two accused and that the case against each of them must be considered separately. He said at one point in his charge:

Now, remember please that there are two accused. You have to consider each separately and render a verdict for each one.

To the same effect he said later in his charge:

Each accused is charged on a common indictment, but each accused is entitled to have his guilt or innocence as to the crime charged determined from his own conduct and from the evidence which applies to him as if he were being tried alone. Each of the accused then in that sense must be considered separately. Evidence which is before you may relate to one of the accused and not to the other accused. In that sense you cannot necessarily accept the evidence for or against one accused as being for or against the other accused. In the end, you will have to render a verdict, meaning a separate verdict, with respect to each of the accused. That is to say, you will render a verdict with respect to each of the accused, considered separately, which may or may not be the same verdict.

The trial judge referred to the power of arrest without warrant conferred by s. 450(1) (b) of the Criminal Code where a police officer finds a person apparently committing a criminal offence. The direction concerning the justified use of force, based on the terms of s. 25 of the Code, immediately followed the instructions concerning the power of arrest. The trial judge put to the jury the defence based on arrest and the right to use necessary force to effect arrest. He directed the jury's attention to the evidence of the appellant and O'Donnell with respect to the appellant's arrest of Hollett.

On this evidence it was open to the jury to conclude in the context of the trial judge's charge as a whole, that the appellant was exercising the power, under s. 450(1)(b) of the Code, to arrest Hollett as a person who, he had reasonable grounds for believing, was apparently committing the criminal offence of assault (see Roberge v. The Queen, [1983] 1 S.C.R. 312 at pp. 324‑25), that he was justified in using necessary force for such purpose, and that he did not use excessive force. I am far from satisfied that the trial judge's charge to the jury with respect to the justified use of force by a police officer, which purported to be, and was in fact, based essentially on the terms of s. 25 of the Code, was clearly calculated to convey the impression to the jury that a police officer was justified in using necessary force to carry out an investigation short of arrest. But assuming that that direction might have been misleading in so far as the position of Constable O'Donnell was concerned, I do not think that it could have misled the jury with respect to the appellant because of his different position with respect to the power of arrest. Clearly the jury was able to distinguish the positions of the two constables. The Court of Appeal, although it noted the evidence of the appellant's arrest of Hollett, failed to distinguish the positions of the two constables with respect to the power of arrest, as indicated by the following statement of Jones J.A.: "If the constables failed to arrest Mr. Hollett when they first approached him and to give him the reasons why he was being arrested the arrest was unlawful and the officers were not acting in the execution of their duty." That the Court of Appeal failed to attach significance to the different positions of the appellant and O'Donnell with respect to the power of arrest, in considering the effect of the direction as to the use of force in the appellant's case, is further indicated, I think, by the statement of Jones J.A. that misdirection as to the use of force and as to the mental element required for aiding or abetting manslaughter provided the only plausible explanation of how the jury could have reached a different verdict with respect to the two accused. For these reasons I am of the opinion that the Court of Appeal erred in holding that there was misdirection by the trial judge concerning the use of force, at least in so far as the appellant was concerned, calling for the setting aside of the appellant's acquittal.

III

The conclusion of the Court of Appeal that the trial judge misdirected the jury as to the mental element required for aiding or abetting manslaughter was based on the following statement by the trial judge: "Of course, such a person who is alleged to have aided or abetted another person to commit an offence must have done so with a guilty intent before he can be found guilty of the offence itself." That statement was part of a rather long charge on the mental element required to become a party to an offence under s. 21(1) of the Code by aiding or abetting the principal offender, in the course of which the trial judge used a variety of expressions to characterize the required state of mind or conduct. The essential emphasis in the trial judge's charge on this point was that there must be an intent to aid or abet, as reflected in the following statement: "There must be intentional encouragement or assistance in the commission of the crime for an accused to be guilty of aiding or abetting." The charge on the mental element required for aiding or abetting followed a very full and clear exposition of the difference, in respect of mens rea, between murder and manslaughter, in the course of which the trial judge said: "No intention to kill or cause bodily harm of the nature I have described need be proved by the Crown beyond a reasonable doubt to sustain a verdict of manslaughter. Manslaughter is unintentional killing resulting from an unlawful act...."

The reasoning and conclusion of the Court of Appeal on this issue is indicated in the following passages from the reasons for judgment of Jones J.A. (at pp. 368‑69):

Having initially instructed the jury that no intention to kill was necessary to convict of manslaughter, in referring to parties, the trial judge mentioned the need for "guilty intent" without explaining what was meant to the jury. The question of intent was vital, of course, if a person was a party to the offence of murder. The Crown argues that it was necessary for the trial judge at this point to explain to the jury the mens rea required of a party to the offence of murder or manslaughter and to distinguish between the two offences.

...

To aid or abet the offence of manslaughter it was only necessary for Constable Cluett to know that an unlawful assault was taking place or if a lawful arrest had been effected that excessive force was being used. No other intention was necessary. The distinction between parties to the offences of murder and manslaughter was not made clear to the jury.

I am of the opinion that there was no error in the trial judge's charge with respect to the mental element required to become a party to an offence by aiding or abetting, and that his charge on this question could not have confused or misled the jury, in view of his earlier clear direction on the difference, in respect of mens rea, between murder and manslaughter, into thinking that aiding or abetting manslaughter required an intention to kill that manslaughter itself did not. As I have said, the trial judge's charge to the jury on the mental element required for aiding or abetting was a long one in which he used a variety of expressions to characterize the required mental element, including a reference to "prior knowledge of the principal's intention to commit the offence". From the various ways in which he expressed the necessary mental element for aiding or abetting I would infer that his charge was based essentially on the language used by Dickson J. (as he then was) and the authorities from which he quoted in Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881 at pp. 891‑96. Because of the nature of the trial judge's charge on the mental element required for aiding or abetting it was impossible in my opinion for the jury to conclude that in using the words "guilty intent" he was referring, not to the mental element required for aiding or abetting, but to that required for manslaughter. Towards the end of his charge to the jury the trial judge again emphasized the difference, in respect of mens rea, between murder and manslaughter, saying, "No intention to kill or cause bodily harm of the nature I have described need be proved by the Crown beyond a reasonable doubt to sustain a verdict of manslaughter. Manslaughter is unintentional killing resulting from an unlawful act...." As for the possibility that there should have been a clearer reference by the trial judge to the necessity of knowledge that the principal offender was commiting an unlawful act, such a reference could only have been favourable to the appellant in view of the evidence to which I have referred concerning the appellant's arrest of Hollett. Looking at the trial judge's charge to the jury as a whole, I am of the opinion that the jury were left with a sufficient understanding, in relation to the appellant, of the mental element required for aiding or abetting manslaughter.

IV

The conclusion of the Court of Appeal that the trial judge failed to indicate the evidence that could support a finding of manslaughter against the appellant is contained in the following passage of the reasons of Jones J.A. (at pp. 369‑70):

In addition, the trial judge failed to point out the facts which could support a finding of manslaughter against Constable Cluett. Taken in conjunction with the direction on the right to use force it was impossible for the jury to appreciate the case for the Crown. As I have already noted, this appears to be the most plausible explanation of the jury's verdict. In the event that the jury had been properly instructed it is difficult to see how they could have reached a different verdict with regard to each of the accused.

I am unable to agree with this conclusion. The trial judge set out the contentions of the Crown and the accused, as well as the applicable law, and made a very full summary of the relevant evidence. He clearly indicated the possibility of manslaughter. He did not have a duty to relate specific portions of the evidence to the issue of manslaughter, in so far as the appellant was concerned. See John v. The Queen, [1971] S.C.R. 781 at pp. 792‑93. Moreover, his summary of the evidence, in so far as the possibility of a finding of manslaughter against the appellant was concerned, must be seen in relation to the evidence that the appellant did not see how the struggle between O'Donnell and Hollett began and arrested Hollett as a person who he had reasonable grounds for believing was apparently assaulting O'Donnell.

For these reasons I would allow the appeal, set aside the judgment of the Court of Appeal and restore the acquittal of the appellant.