Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of rights - Criminal law - Right to security of person - Cruel and unusual treatment or punishment - Protection of persons acting under authority - Excessive force in effecting arrest - Whether the majority of the Court of Appeal erred in dismissing the appeal notwithstanding its conclusion that the trial judge erred in law in finding that the appellant bore the burden of establishing that the use of deadly force was not justified under s. 25 of the Criminal Code, R.S.C. 1985, c. C-46 - Canadian Charter of Rights and Freedoms, ss. 7 and 12.

The appellant was convicted of possession of a weapon for a dangerous purpose, assault of a police officer in the execution of duty, and assault of a police officer with a weapon. Armed with a butcher knife, he was seen riding a bike around the parking lot of an Edmonton shopping mall. When a police officer stopped and sounded his air horn to get the appellant’s attention, the appellant charged at the driver’s side door of the car with the knife raised. The window was open and, in response, the officer covered his head and leaned toward the passenger’s side of the car. The officer eventually got out of his car, revolver drawn, and told the appellant several times to drop the knife. The appellant walked away, knife in hand, and headed toward the mall. The officer followed him, determined not to let the appellant near people while still armed, and decided to shoot when it became apparent that he would not drop the knife. The appellant was shot twice, once near the Adam’s apple and once in the right chest, before his arrest. On appeal, the appellant argued among other things that the trial judge erred by failing to find that his Charter rights were breached by the use of excessive force in effecting his arrest. The majority of the Court of Appeal found that the trial judge erred in law in concluding that the appellant bore the burden of establishing that the use of deadly force was not justified under s. 25 of the Criminal Code. However, finding that nothing turned on that error, the majority dismissed the appeal. Fraser C.J., dissenting, would have allowed the appeal and ordered a new trial on the basis that the trial judge’s error in misallocating the burden of proof led her to conduct the analysis on whether the use of deadly force was justified from the wrong perspective. As a result, the trial judge failed to consider whether the Crown had established on a balance of probabilities that the officer’s use of deadly force was justified at law.