R. v. Crocker (A.),

R. v. Crocker (A.) (2015), 373 Nfld. & P.E.I.R. 178 (NLPC);

    1161 A.P.R. 178

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. NO.030

Her Majesty the Queen v. Anthony Crocker

(Docket: 0114A03113)

Indexed As: R. v. Crocker (A.)

Newfoundland and Labrador Provincial Court

Walsh, P.C.J.

August 14, 2015.

Summary:

The accused correctional officer was charged with assault as a result of striking Boland twice in the face with his hand. Boland was being held in the "the drunk tank". The accused asserted that the force used was justified under s. 25 of the Criminal Code.

The Newfoundland and Labrador Provincial Court found the accused guilty.

Criminal Law - Topic 229

General principles - Statutory defences or exceptions - Persons acting under authority (s. 25) - Boland was detained under the Detention of Intoxicated Persons Act and placed in the "drunk tank" - He was loud, drunk, belligerent, profane, insulting and obnoxious to the accused correctional officer - He unsuccessfully attempted to grab the accused - Over the course of several hours he threatened the accused and the accused's family - He spat on the accused - The accused returned to the control centre and used Spray Nine to clean the spit off his arm - He and two other correctional officers then returned to the drunk tank to move Boland to an observation cell - Boland got on his stomach with his hands behind his back - While the accused was handcuffing Boland, Boland spat on him a second time - The accused struck him twice in the face in quick succession with his hand - The Newfoundland and Labrador Provincial Court found the accused guilty of assault - The use of force was not justified under s. 25 of the Criminal Code - His explanation that he was entitled to use impact weapons (his hands) due to the attempted grievous bodily harm (being spat on) was a misinterpretation of the Use of Force Management Model Policy - The only defined impact weapon was a baton - The head was a "red zone" and described as a "deadly force target" - It was to be avoided due to potentially serious consequences - The accused's decision to strike Boland twice in the face was not reasonable - He struck Boland deliberately as a reaction to being spit on and threatened - He had other options available - He might have subjectively believed that he was at risk of bodily harm as a result of the spit - However, that subjective belief was unreasonable given the absence of medical evidence on the point - Anecdotal information on the risk of harm was not enough to meet the objective standard in order to justify the accused's actions - See paragraphs 116 to 138.

Criminal Law - Topic 1412

Offences against person and reputation - Assaults - Defences - General - [See Criminal Law - Topic 229 ].

Cases Noticed:

R. v. V.A.F. (1989), 80 Sask.R. 111 (Q.B.), refd to. [para. 92].

R. v. Scharf, [1989] S.J. No. 540, refd to. [para. 98].

R. v. Crockwell (L.) (2013), 333 Nfld. & P.E.I.R. 37; 1034 A.P.R. 37; 2013 NLTD(G) 17, refd to. [para. 98].

R. v. Berrie et al. (1975), 24 C.C.C.(2d) 66, refd to. [para. 98].

R. v. Wilcox (C.J.), [2015] A.R. TBEd. JL.076; 2015 ABPC 147, refd to. [para. 98].

R. v. Dunne (J.R.) (2014), 311 Man.R.(2d) 206; 2014 MBPC 60, refd to. [para. 98].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 98].

R. v. Hemeon (T.) et al., [2005] N.S.R.(2d) Uned. 69; 2005 NSSC 171, refd to. [para. 104].

R. v. Bottrell (1981), 60 C.C.C.(2d) 211 (B.C.C.A.), refd to. [para. 112].

R. v. St. Onge (L.J.) (2014), 441 Sask.R. 126; 2014 SKPC 64, refd to. [para. 112].

R. v. Kane, [2011] B.C.J. No. 1320, refd to. [para. 112].

R. v. Devereaux (O.) (1996), 147 Nfld. & P.E.I.R. 108; 459 A.P.R. 108 (N.L.C.A.), refd to. [para. 112].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239, refd to. [para. 122].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 132].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 132].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 133].

Counsel:

Sheldon Steeves, for Her Majesty the Queen;

Randolph Piercey, Q.C., for the accused.

This trial was heard at St. John's, N.L., on July 27-30, 2015, by Walsh, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on August 14, 2015.