R. v. Dunne (J.R.),

R. v. Dunne (J.R.) (2014), 311 Man.R.(2d) 206 (PC)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. NO.021

Her Majesty The Queen v. Jonathan Robert Dunne (accused)

(2014 MBPC 60)

Indexed As: R. v. Dunne (J.R.)

Manitoba Provincial Court

Harvey, P.C.J.

November 13, 2014.

Summary:

The accused correctional officer was charged with assaulting an inmate. The accused argued that he was protected by ss. 25 and/or 34 of the Criminal Code.

The Manitoba Provincial Court found the accused not guilty.

Criminal Law - Topic 229

General principles - Statutory defences or exceptions - Persons acting under authority (s. 25) - A prison inmate (Toews) was causing a disturbance and giving staff a hard time - A correctional officer (Dunne) decided to move Toews to a holding cell - Dunne and two other officers went to Toews' cell to effect the transfer - Handcuffs were applied by having Toews put his hands through the food slot in his cell door - When the cell door opened, Toews burst out and was immediately combative and resistant - One officer was scratched on her arm and two had their glasses knocked off - Dunne applied three knee strikes to Toews' head or shoulder area, three punches to his head, and four knee strikes to his lower back - Other officers responded to a call for help and Toews was subdued - Dunne was charged with assault - The Manitoba Provincial Court found Dunne not guilty on the basis of ss. 25 and/or 34 of the Criminal Code - The court stated "[K]eeping in mind ... that officers' actions should be judged in light of exigent circumstances, that allowance must be made for an officer, in the exigency of the moment, misjudging the degree of necessary force, and that officers will not be denied the protection of section 25 if they fail to use the least amount of force that would have achieved the desired result, I cannot say that the line was crossed and that the force used was excessive. Therefore, accepting a reasonable perception of imminent harm to he or his fellow officers, I believe that Dunne did what he thought was necessary and reasonable in the circumstances, and I find that it was not excessive."

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - [See Criminal Law - Topic 229 ].

Criminal Law - Topic 1420

Offences against person and reputation - Assaults - Defence - Self-defence - [See Criminal Law - Topic 229 ].

Criminal Law - Topic 1423

Offences against person and reputation - Assaults - Defence - Defence of others - [See Criminal Law - Topic 229 ].

Prisons - Topic 444

Actions against prison officers and authorities - Tort - Assault and battery - Excessive force - [See Criminal Law - Topic 229 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 65].

R. v. Menow (R.A.) (2013), 294 Man.R.(2d) 236; 581 W.A.C. 236; 2013 MBCA 72 (C.A.), refd to. [para. 67].

R. v. Vuradin (F.) (2013), 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 67].

R. v. Kadirsahib (M.S.) (2013), 300 Man.R.(2d) 205; 2013 MBQB 291, refd to. [para. 67].

R. v. Hoohing, 2007 ONCA 577, refd to. [para. 67].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 78].

Bolianatz et al. v. Edmonton Chief of Police Service et al. (2002), 313 A.R. 73; 2002 ABQB 284, refd to. [para. 79].

R. v. Asante-Mensah (D.), [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317; 2003 SCC 38, refd to. [para. 79].

Klyne v. Rae (2002), 218 Sask.R. 141; 2002 SKQB 139, refd to. [para. 80].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 25 [para. 75]; sect. 34 [para. 76].

Counsel:

J. Ross, for the Crown;

L. Labossiere and P. McKenna, for the accused.

This matter was heard before Harvey, P.C.J., of the Manitoba Provincial Court, who delivered the following reasons for decision on November 13, 2014.