Criminal Law Web

R. v. O'DONNELL
R. v. CLUETT
[1982] N.S.J. No. 542
 Nova Scotia Supreme Court Appeal Division

1     JONES, J.A.:— The present appeals stem from a charge of second degree murder laid against David Cluett and Harry O'Donnell. Mr. Cluett and Mr. O'Donnell were police officers employed by the City of Dartmouth whom the Crown alleged administered a severe beating to a civilian Earle Frederick Hollett in the course of apprehending him and which caused his death.
2     On a clear, sunny Sunday afternoon, July 27, 1980, Earle Frederick Hollett was seen on the Dartmouth plaza of the Angus L. Macdonald bridge shortly after four o'clock by Staff Sergeant John Parsons, a commissionaire employed by the Bridge Commission. Mr. Hollett was dodging between vehicles proceeding in Lanes 7 and 8. Mr. Hollett took hold of the arm of a young person seated in the rear of a truck and it was at this point that Mr. Parsons felt that some action was necessary to remove Mr. Hollett from the flow of traffic.
3     Mr. Parsons asked Sergeant Harlin Purcell, a commissionaire who was also on duty, to check on the person on the plaza. Mr. Purcell observed Mr. Hollett standing in the centre of traffic. Mr. Hollett was dressed in shorts and bedroom slippers. Mr. Purcell approached Mr. Hollett, asked what he was doing and advised him that hitchhiking was not [*page10] allowed on the bridge. According to Mr. Purcell, Mr. Hollett, using abusive language, challenged Mr. Purcell to put him off the bridge. It was at this point that the Dartmouth police were called.
4     Mr. Hollett stopped a taxi and asked to be taken to Halifax. Mr. Hollett got into the taxi which was then approached by Mr. Purcell. Mr. Purcell spoke to the driver, advising him that the police had been called. The driver declined to drive Mr. Hollett and as a result Mr. Hollett left the taxi and walked off the plaza towards Wyse Road.
5     Mr. Hollett was thirty-five years of age and resided with his wife and two children in Dartmouth. Since the age of fifteen he suffered from an arthritic disease, ankylosing spondylitis. While his spine was severely affected by the disease to the point where Mr. Hollett could scarcely turn his head he was able to work and carry on a surprisingly active life. His head was always bent slightly forward and even when lying down he could not put his head on the floor. In 1976 Mr. Hollett was hospitalized and diagnosed as manic depressive.
6     He had gone camping with members of his family on Saturday night, July 26, 1980, and there was some evidence that he was depressed at the time, particularly over his employment prospects. He had visited a neighbour on Sunday afternoon and left at approximately 3:30 p.m. to go for a walk. Apart from having consumed a portion of a pint of beer there was no evidence that he had been drinking that day and he had not been on any medication for several years.
7     Constables Cluett and O'Donnell had come on duty shortly before 4:00 p.m. They had been assigned the area which included the bridge entrance and were patrolling in a police van. Both men were experienced officers. They had stopped for coffee a short distance from the bridge when the call for assistance came from the Bridge Commission office. Shortly before the call from the bridge the dispatcher had broadcast a report concerning a patient who was missing from the Nova Scotia Hospital. There was evidence that the missing person could be attracted to the bridge. The police dispatcher, Gloria Connolly, testified that she broadcast the missing person's name and a brief description shortly after 4:00 p.m. The name was James Emsley who was a voluntary patient in the Hospital.
8     Constables Cluett and O'Donnell arrived at the bridge [*page11] entrance and spoke to Sergeant Purcell who advised them that Mr. Hollett had been hitchhiking on the bridge and directed the officers' attention to Mr. Hollett who was in the intersection of Wyse Road and Nantucket Avenue. Nantucket Avenue crosses Wyse Road and enters the bridge plaza. It is a busy intersection and there were numerous civilian witnesses as to the events which subsequently transpired although there was considerable conflict in the evidence. The officers drove the van off the bridge plaza, turned onto Wyse Road, then made a turn to the other side of the boulevard and came back to park in front of the Scotia Bank near the intersection. They intended to speak to Mr. Hollett.
9     Ann Louise Fuller had stopped for gasoline at the Esso Service Station at the intersection at approximately 4:20 p.m. She noticed Mr. Hollett walking through the flow of traffic as the police van approached. Mr. Hollett walked up to the side of the van and was talking to the driver for a few moments. He then turned and walked away back towards the bridge. The driver got out of the van and went up to Mr. Hollett and there was a loud exchange of words. The other officer got out of the van and opened the rear door. The driver then placed his hand on Mr. Hollett's shoulder and it was knocked away. The driver then placed a full nelson on Mr. Hollett and the two officers tried to put Mr. Hollett, who was then struggling and kicking, into the van. Ann Fuller lost sight of the three men behind the van. After several minutes they appeared around the van. At this point she observed one of the officers holding Mr. Hollett from behind while the other officer was standing directly in front of him. According to Ann Fuller, the officer in front took Mr. Hollett by the throat and struck him in the face and shoulder areas six to ten times and you could see his head going from side to side. At this point Mr. Hollett was not struggling. She saw blood on the right hand and forearm of the policeman.
10     Mr. John Henriksson had also stopped at the Esso station. He saw Mr. Hollett talking to the driver of the van and then leave. The driver got out of the van and followed Mr. Hollett across the street where an exchange of words took place in the street. The other officer got out of the van and approached the two men. The driver then tried to grab Mr. Hollett's arm but he pulled away. The other officer then put a full nelson on Mr. Hollett and they tried to force him back to the van. Mr. Henriksson lost sight of the three men for a few seconds until they came to the passenger side of the vehicle where he observed one officer throwing ten to [*page12] fifteen punches to Mr. Hollett's face while he was being held by the other officer in a full nelson. He did not observe Mr. Hollett strike either policeman. The blows were aimed at Mr. Hollett's face which became covered in blood as did the officer's arm. Mr. Henriksson's young son became upset so that Mr. Henriksson left the scene.
11     Mrs. Linda Cordeau was a passenger in the family car proceeding along Wyse Road. She noticed the officers approaching Mr. Hollett who was raising his hands as if to warn them to stay away. They grabbed him by the arms and started to take him to the van, at which time he was kicking and throwing his arms. When they approached the van Mr. Hollett grabbed one officer by the hair. Mrs. Cordeau then lost sight of the officers until her husband turned and came back to the scene. At this point she observed Mr. Hollett kicking at the police and one officer hit him two or three times in the mid-section. They took Mr. Hollett by the seat of the pants and put him face down in the van. At this point a large crowd had gathered.
12     Mr. George Carnahan was driving north on Wyse Road when he observed the officers talking to Mr. Hollett. The police officers grabbed for Mr. Hollett and he tried to wrench free. A general scuffle ensued along the side of the van. He saw one officer strike Mr. Hollett in the stomach area approximately six times. He did not observe Mr. Hollett pulling an officer's hair or Mr. Hollett being held in a full nelson.
13     Miss Maureen McLaughlin was driving a car south on Wyse Road. She observed three men behind the van. One officer had a restraining hold on Mr. Hollett while the other officer was punching him with jabs into the chest and stomach area.
14     Maureen McGrath was in the McLaughlin vehicle. As they passed the van she observed one officer holding the civilian underneath the arms while the other officer was punching him in the chest area.
15     Deborrah Bank was also in the McLaughlin vehicle. She stated that one of the officers pinned Mr. Hollett's arms back while the other officer struck Mr. Hollett six or seven times in the chest area. Mr. Hollett was struggling to get free.
16     Miss Cathy Wyman was walking along Wyse Road in front of the Scotia Bank where the van was parked. She heard the [*page13] driver call Mr. Hollett over to the van. An argument ensued. The officers got out of the van and approached Mr. Hollett. They continued to argue and Mr. Hollett asked, "What did I do?". One of the policemen put Mr. Hollett in an armlock and they brought him around the side of the van. They were still struggling. One officer held Mr. Hollett in an armlock while the other officer struck him in the face six to ten times. Mr. Hollett's face was full of blood and he was moaning. He continued to struggle and he fell face down on the ground. Other officers arrived and assisted in putting the handcuffs on Mr. Hollett and placing him in the vehicle.
17     Miss Cathy Wyman identified David Cluett as the officer holding Mr. Hollett while Harry O'Donnell was the officer punching him.
18     Karen MacKay who was also at the scene testified that one officer held Mr. Hollett's arms behind his back while the other officer kept hitting him in the face about fifteen times. She heard Mr. Hollett say, "Stop hitting me, stop!".
19     Mr. Clarence Webb is a taxi driver who was proceeding through the intersection in his vehicle. He stated that he observed both officers striking Mr. Hollett in the abdomen and the face. One officer was jabbing him with a billy.
20     Miss Carol Cruikshanks testified that she observed Mr. Hollett being struck by a billy and once in the face by a police radio. During the struggle one officer said to Mr. Hollett, "I'll kill you yet, you bastard." There was an exchange of words between Miss Cruikshanks and one of the officers. She observed blood all over Mr. Hollett's face, the officers' clothes and on the street. She also thought that Mr. Hollett had one of the officers by the hair.
21     Mr. Frank Prosser observed two policemen struggling with Mr. Hollett behind the van. He observed one officer holding Mr. Hollett around the neck in a kind of hammer-lock and the other officer striking him in the chest. There was blood all over Mr. Hollett's face and down his chest.
22     Christopher Barzilay observed the officers leave the van and walk towards Mr. Hollett. He observed a full nelson being put on Mr. Hollett and one of the officers striking him with four punches to the head and then followed by a flurry of punches. [*page14]
23     References to these particular witnesses briefly indicates the main evidence adduced in support of the Crown's contention that Mr. Hollett was severely beaten. As I have indicated, there was considerable conflict regarding the specific nature and location of the blows, the extent to which Mr. Hollett resisted, and whether he had been struck by a baton or the police radio. During the course of the struggle Constable Cluett called for back-up units on the radio. Two Halifax police officers observed the incident and assisted Constables Cluett and O'Donnell in handcuffing Mr. Hollett and placing him in the van. There was evidence by some of the witnesses that considerable force was used in placing Mr. Hollett in the van. Corporal Lowe was in charge of the evening shift and went immediately to the scene. At that time Mr. Hollett was in the van and he observed that Constables Cluett and O'Donnell were covered with blood. He noted that Constable O'Donnell complained of losing some of his hair. He instructed the officers to go immediately to the police station with the van and wait until he arrived. On opening the van at the station he observed Mr. Hollett lying on his stomach on the floor with his head facing towards the door and his feet towards the front of the wagon. He was not moving and there was blood coming from his nose which formed a puddle on the floor. He asked Mr. Hollett his name twice but the only response he received was in a low voice, "My name is . . .", which was repeated twice. Corporal Lowe immediately instructed Constables Cluett and O'Donnell to take Mr. Hollett to the Dartmouth General Hospital.
24     On arrival at the Hospital Mr. Hollett was taken from the wagon and placed in a wheelchair and then wheeled into the emergency department where they were met by Nurse Marlene Vey. Mr. Hollett was slouching back in the wheelchair. When asked what happened the officers indicated that they had tried to pick up Mr. Hollett and that he had grabbed one of the officers by the hair and they had to get him off. The nurses were unable to get any response from Mr. Hollett. The officers then lifted him from the wheelchair in order to place him on a stretcher but he was unable to stand on his own except for a few seconds. He was then lifted onto the stretcher. He was further examined and his vital signs were recorded as stable. When he was in the wheelchair Nurse Vey noted that his head was resting a little to the side and on the back of the wheelchair and that his breathing was shallow. When Mr. Hollett was placed on the stretcher his head rolled back flat on the stretcher. The officers refused to remove the handcuffs indicating that they thought [*page15] Mr. Hollett was violent. There were several nurses present who testified as to Mr. Hollett's condition when he arrived at the Hospital. The patient was examined by Dr. Kenneth Cameron. Mr. Hollett was conscious at that point and responded that his name was Hollett. He was bleeding from the nose and a cut at the base of the nose. He had a bruise under his left eye. There were no major injuries apparent. Dr. Cameron observed blood running down the back of the patient's throat and ordered that Mr. Hollett be elevated by raising the head of the stretcher to some forty-five degrees. Dr. Cameron also directed that X-rays be taken.
25     In a matter of minutes after completing his examination Dr. Cameron was called back into the Trauma Room as the patient had suddenly stopped breathing. The patient was immediately taken to the Cardiac Room where he was intubated by Dr. Chisholm. The patient did not go into cardiac arrest although he had stopped breathing. Dr. Chisholm was able to restore breathing by artificial means. Dr. Cameron stated that he had no reason to suspect that the patient had suffered injury to the spinal cord. When Dr. Chisholm first observed the patient he formed the impression that Mr. Hollett was seriously injured. He testified that he had no difficulty in placing a tube in the patient's lungs. There was considerable blood and secretion in the throat which had to be suctioned off before the tube could be inserted. Dr. Chisholm did not feel that the respiratory arrest was caused by the matter in Mr. Hollett's throat. The Dartmouth Hospital medical staff were not aware of Mr. Hollett's diseased spine when he was undergoing treatment.
26     Mr. Hollett was transferred to the Victoria General Hospital Emergency Centre by ambulance that same evening. He was examined at the Victoria General upon admission by Dr. Felicity Simms. He was unconscious. In discussions with Mrs. Hollett, Dr. Simms was advised that Mr. Hollett had ankylosis spondylitis and as she suspected spinal injuries she immediately ordered X-rays. The X-rays showed a fracture of the spine between the third and fourth vertebrae. The X-rays were examined by Dr. Renn Holness, a neurosurgeon at the Victoria General. After checking the X-rays and the patient Dr. Holness concluded that Mr. Hollett was then a quadriplegic. In his opinion Mr. Hollett had suffered a period of irreversible cerebral anoxia. The damage to the spinal cord had obviously impaired the patient's respiratory function. On August 5, 1980 the patient was able to breath on his own. Complications subsequently set in and Mr. Hollett [*page16] died on August 11, 1980.
27     There was a great deal of medical evidence adduced in an effort to show that Mr. Hollett was not seriously injured when he entered hospital and that the injury to the spine was more likely to have been caused during treatment at the Dartmouth General Hospital. Experts were called by both the Crown and defence to establish whether the injuries were caused as a result of the initial struggle with the officers on Wyse Road. Dr. Roland Perry, the Medical Examiner, performed an autopsy on the body. In his opinion death was due to lack of oxygen to the brain. This was caused by the respiratory arrest which was a direct complication of the injuries to the neck area and upper chest. There was injury to the spinal cord. It is not necessary for purposes of the present appeal to examine the medical evidence in detail. The jury was apparently satisfied that the beating caused the injuries to Mr. Hollett's spine which resulted in his death.
28     The trial was a joint trial and both Harry O'Donnell and David Cluett testified for the defence. Mr. O'Donnell testified that he recalled hearing the report as to the patient who was missing from the Nova Scotia Hospital. He was not aware whether the person was a voluntary patient. They proceeded to the bridge plaza where they spoke to Sergeant Purcell. He then observed Mr. Hollett hitchhiking on Wyse Road. Mr. O'Donnell stated that he was obstructing traffic. When the van stopped on Wyse Road Constable O'Donnell hollered at Mr. Hollett to ask what he was doing and to come to the van. Mr. Hollett came over to the driver's window and again was asked what he was doing. He replied that he was out for a Sunday walk. When asked whether he had a problem with the commissionaire on the bridge he simply stared. When asked his name he hollered, "Hollett" and to the query as to where he lived he replied, "The North end". When asked his birth date Mr. Hollett walked away from the van. Mr. O'Donnell got out of the van, went over to Mr. Hollett and told him two or three times to stop. When Mr. Hollett turned the officer told him "to come back to the van we're not finished with you". Mr. O'Donnell turned slightly towards the van and at this point, he said, Mr. Hollett grabbed him by the top of the hair and held him down. Despite demands by the Constable Mr. Hollett would not let go. Constable Cluett then came to the assistance of Constable O'Donnell. He demanded that Mr. Hollett release Constable O'Donnell and when he did not do so he placed him under arrest for assaulting a police officer. Mr. Hollett continued to [*page17] struggle with the officers, all the time holding Constable O'Donnell by the hair while he himself was being held around the throat by Constable Cluett. Constable O'Donnell eventually threw punches at Mr. Hollett's face about four or six times in order to force him to let go of his hair. When Mr. Hollett finally let go he was bleeding badly from the nose and spitting blood at the officer. The struggle continued to the back of the van where all three fell to the ground. They eventually put the handcuffs on Mr. Hollett and got him in the van with the assistance of two Halifax policemen. Constable O'Donnell testified that Mr. Hollett was kicking and striking at the officers up to the time the van doors were closed. He denied that Mr. Hollett was struck by a baton or a police radio.
29     Constable Cluett confirmed Constable O'Donnell's evidence. When he saw Mr. Hollett holding Constable O'Donnell's hair he immediately went to his assistance. He told Mr. Hollett to remove his hands and when he did not do so Constable Cluett informed him he was under arrest for assaulting a police officer. Constable Cluett said that he then placed a neck hold on Mr. Hollett but that he never used a full nelson. He said that Mr. Hollett was very strong and only let go of Constable O'Donnell's hair when he was struck several times by Constable O'Donnell. The struggle continued at the back of the van and when they were on the ground Constable Cluett radioed for assistance. Evidence was also introduced by the defence to show the nature of the injuries received by Constable O'Donnell, including a photograph showing where the hair was missing from his head.
30     A lengthy trial was held on the murder charge before Mr. Justice Clarke and a jury. In the result Constable O'Donnell was found guilty of manslaughter and sentenced to serve a term of ten months in the Halifax County Correctional Centre. Constable Cluett was found not guilty. Harry O'Donnell appealed his conviction and the Crown entered an appeal against the sentence. The Crown also appealed the "not guilty" verdict in the case of Constable Cluett.
31     I propose in this judgment to deal with Mr. O'Donnell's appeal against conviction first, then the Crown's appeal against Constable Cluett's acquittal and, finally, with the Crown's appeal against Mr. O'Donnell's sentence. Before dealing with the specific grounds of appeal raised in the appeals against the conviction and the acquittal I think it will be useful to review, generally, the issues raised by the [*page18] evidence on the trial and the submissions of counsel. The learned trial judge's charge must be examined in the light of those issues.
32     Stripped of all the non-essentials, the facts are fairly simple. It was the Crown's contention that Constables O'Donnell and Cluett administered a severe beating to Mr. Hollett. In support of that position the Crown called fourteen witnesses. The general tenor of the evidence was that Mr. Hollett went to the driver's side of the police van and that words were exchanged in loud voices. Mr. Hollett then turned away from the van and was pursued by Constable O'Donnell who was shortly followed by Constable Cluett; more words were exchanged and the officers then took hold of Mr. Hollett and tried to force him towards the van. He resisted and as a result a hold was placed on him by Constable Cluett and he was beaten by Constable O'Donnell and eventually forced into the van with the assistance of two other officers. In direct opposition to that evidence Constables O'Donnell and Cluett testified that Constable O'Donnell approached Mr. Hollett in the intersection in an effort to get him to return to the van and was immediately seized by the hair by Mr. Hollett. When Constable Cluett heard Constable O'Donnell holler he came to his assistance. Constable Cluett told Mr. Hollett he was under arrest for assaulting a police officer; he placed a hold on Mr. Hollett and the latter only released Constable O'Donnell when he was struck four to six times by the officer.
33     The Crown maintained that there were two main issues: (1) whether the officers had unlawfully assaulted Mr. Hollett, and (2) whether the assault caused his death.
34     On the first issue the Crown contended that it was a matter of credibility as, generally, all the Crown witnesses who saw the incident did not support the officers' evidence that Mr. Hollett assaulted Constable O'Donnell in the first instance by grabbing his hair.
35     The main contention of the defence was that Mr. Hollett was the assailant in the first instance and that the officers at all times were engaged in the lawful execution of their duty as peace officers. If the Crown established the officers had assaulted Mr. Hollett and that it caused his death there was an evidentiary burden placed on the officers to show they were acting in the course of their duty and that the use of force was justified. [*page19]
36     It is important to note that the Constables did not allege that Mr. Hollett was arrested for a violation of the Motor Vehicle Act or a breach of the Bridge Commission Regulations. It would have been difficult to suggest that the degree of force used was necessary to prevent a pedestrian from hitchhiking or obstructing traffic, whether on Wyse Road or the bridge. They were thus placed in the position of explaining the initial detention attested to by the Crown witnesses in the event that the jury rejected their explanation that Mr. Hollett was the assailant in the first instance. This no doubt led to the strong position taken by the defence that the officers were acting in the execution of their duty at all times in enforcing various Provincial statutes, and particularly the Motor Vehicle Act. Counsel for Constable O'Donnell did not stop there, however, but went on to improperly instruct the jury on the law as follows:

"To simplify matters, Mr. Foreman, I submit that the decision that you are going to have to make in your jury room is simply this:

Since Constable O'Donnell and Constable Cluett were in the lawful execution of their duty, did they use excessive force at the time they attempted to investigate a complaint and apparent breach of the Motor Vehicle Act, committed by Mr. Hollett and did they use excessive force at the time of the apprehension of Earle Frederick Hollett?"

That statement was then emphatically repeated to the jury. Defence counsel then continued:

"There is, however, Mr. Foreman, one conclusion that I feel that you will come to without difficulty, and that is that Constable Cluett did not use excessive force in the investigation and later dealings with Earle Frederick Hollett."

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 indentify him and complete the investigations they had undertaken.

"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 circumstances, 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. The defence says to you that at all times, the two accused were acting within their lawful authority as police officers and while so doing, Hollett committed an unlawful assault."

"I turn now to the question whether the giving of a signal to stop in order to ascertain whether the respondent had been drinking, albeit he was initially requested to produce his licence, constituted an unjustifiable interference with the respondent's liberty. In carrying out their general duties, the police have limited powers, and they are entitled to interfere with the liberty and property of the citizen only where such interference is authorized by law. It is, of course, a constitutional principle that the citizen has a right not to be subjected to imprisonment, arrest or physical restraint that is not justified by law, and every invasion of the property of the citizen is a trespass unless legally justified. In Knowlton v. The Queen, supra, Fauteux, C.J.C. was careful to point out that no question of false imprisonment was involved. On the other hand, when a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, a police officer has no right to detain a person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless, of course, the officer arrests him on a specific charge or arrests him pursuant to s. 450 of the Code where the officer has reasonable and probable grounds to believe that he is about to commit an indictable offence: see the Judges Rules, [1964] 1 W.L.R. 153; Bales et al. v. Parmeter (1935), 35 S.R.N.S.W. 182; Rice v. Connolly, [1966] 2 Q.B. 414; Koechlin v. Waugh and Hamilton, [1957] O.W.N. 245, 118 C.C.C. 24, 11 D.L.R.(2d) 447 (C.A.); '"Arrest, Detention and Compulsion"', [1974] Crim. L. Rev. 288, by David Lanham; J.L. Lambert, '"Police Powers of Stop and Search"' (1974), 124 N.L.J. 476." [*page23]

"A police officer has not in law an unlimited power to arrest a law-abiding citizen. The power given expressly to him by the Criminal Code to arrest without warrant is contained in s. 435, but we direct careful attention of the public to the fact that the law empowers a police officer in many cases and under certain circumstances to require a person to account for his presence and to identify himself and to furnish other information, and any person who wrongfully fails to comply with such lawful requirements does so at the risk of arrest and imprisonment. None of these circumstances exist in this case. No unnecessary restriction on his power which results in increased difficulty to a police officer to perform his duties of office should be imposed by the court. At the same time, the rights and freedom under law from unlawful arrest and imprisonment of an innocent citizen must be fully guarded by the courts. In this case, the fact that the companion of the infant plaintiff was wearing rubber-soled shoes and a windbreaker and that his dress attracted the attention of the police officers, falls far short of reasonable and probable grounds for believing that the infant plaintiff had committed an indictable offence or was about to commit such an offence. We do not criticize the police officers in any way for asking the infant plaintiff and his companion to identify themselves, but we are satisfied that when the infant plaintiff, who was entirely innocent of any wrongdoing, refused to do so, the police officer has no right to use force to compel him to identify himself. It would have been wise and, indeed, a duty as a good citizen, for the infant plaintiff to have identified himself when asked to do so by the police officers. It is altogether likely that if the infant plaintiff had been courteous and co-operative, the incident giving rise to this action would not have occurred, but that does not in law excuse the defendants for acting as they did in the particular circumstances.
We direct attention to an important fact. The infant plaintiff was not told by either of the police officers any reason for his arrest. The infant plaintiff [*page24] was entitled to know on what charge or on suspicion of what crime he was seized. He was not required in law to submit to restraint on his freedom unless he knew the reason why that restraint should be imposed. In Christie v. Leachinsky, [1947] 1 All E.R. 567, a decision of the House of Lords, Lord Simon, after referring to many authorities, said at pp. 572-3:

'These citations . . . seem to me to establish the following propositions:

1. If a policeman arrests without warrant on reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
2. If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.
3. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.
4. The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.
5. The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. [*page25]

There well may be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter. These principles equally apply to a private person who arrests on suspicion. If a policeman who entertained a reasonable suspicion that X had committed a felony were at liberty to arrest him and march him off to a police station without giving any explanation of why he was doing this, the prima facie right of personal liberty would be gravely infringed. No one, I think, would approve a situation in which, when the person arrested asked for the reason, the policeman replied: "That has nothing to do with you. Come along with me." Such a situation may be tolerated under other systems of law, as for instance, in the time of letters de cachet in the eighteenth century in France, or in more recent days when the Gestapo swept people off to confinement under an overriding authority which the executive in this country happily does not in ordinary times possess. This would be quite contrary to our conceptions of individual liberty.'

In this case it was held that although the police officers bona fide and on reasonable grounds believed the plaintiff had committed an offence, they had not informed him as to why he was being arrested and were, therefore, liable in damages for false imprisonment. In R. v. Hastings, 90 Can. C.C. 150, [1947] 4 D.L.R. 748, 21 M.P.R. 23, it was held by the New Brunswick Court of Appeal that a person being unlawfully arrested without a warrant is entitled to resist such unlawful arrest."

"The correct proposition of law is stated in 10 Hals., 3rd ed., p. 342, in these terms:

'631. Meaning of arrest. Arrest consists of the actual seizure or touching of a person's body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. An arrest may be made either with or without a warrant.'

There is no room for what seems to be a new subdivision of 'arrest' into 'custodial' arrest and 'symbolical' or 'technical' arrest. An accused is either arrested or he is not arrested. If this accused was arrested, he escaped from lawful custody and is guilty under s. 125(a) of the Criminal Code."

"Therefore, for the reasons which I have outlined above, I am of the opinion that the officer was under a duty to attempt to identify the wrongdoer, and the failure to identify himself by the wrongdoer did constitute an obstruction of the police officer in the performance of his duties."

"Of course, as Kaufman J.A., points out in his reasons, a constable's lot is a heavy and even unenviable one when he has to make an on-the-spot decision as to an arrest. But he may be over-zealous as well as mistaken, and it may be too that when a charge or charges come to be laid the Crown attorney or other advising counsel may mistake the grounds and thus lay a charge which does not support the arrest. We cannot go on a guessing expedition out of regret for an innocent mistake or a wrong-headed assessment. Far more important, however, is the social and legal, and indeed political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise. Only to the extent to which it so provides can a person be detained or his freedom of movement arrested.

The position as it relates to resistance to unlawful arrest was established at common law as early as 1709 in R. v. Tooley (1709), 2 Ld.Raym. 1296, 92 E.R. 349, and has been reaffirmed time and again: see, for example, R. v. Curvan (1826), 1 Mood.C.C. 132, 168 E.R. 1213; R. v. Wilson, [1955] 1 W.L.R. 493, 39 Cr. App.R. 12, [1955] 1 All E.R. 744 at 745, referring also to the qualification of the use of excessive force in resisting. It has been part of our criminal law from the beginning and is reflected in the provisions of the Criminal Code, which has sought to balance the competing interests in freedom and order by giving the peace officer protection in specified circumstances where he has exceeded his authority to make an arrest. Our law has not, as I understand it, deprived the citizen of his right to resist unlawful arrest. His resistance may be at his own risk if the arrest proves to be lawful, but so too must the police officer accept the risk of having effected a lawful arrest. Of course, even if the resisted arrest is unlawful, the person resisting may still become culpable if he uses excessive force."

"34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling 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."

1. THAT the Learned Trial Judge misdirected the jury on the law relating to circumstantial evidence."

As I understand the argument of counsel, the judge erred in instructing the jury on the rule in Hodge's case in the first instance and in particular that it could only relate to the issue of intent as that was the sole issue. In support of this ground of appeal counsel referred to the decisions of the Supreme Court of Canada in R. v. Mitchell, [1964] S.C.R. 471, and R. v. Cooper (1977), 37 C.R.N.S. 1. The trial judge referred to the rule in Hodge's case on at least three occasions and included examples of what constituted direct and circumstantial evidence. I do not think there can be any serious objection to the words which he used.
48     During the course of the trial it was argued by counsel [*page29] for the defence that the Crown had not established beyond a reasonable doubt that the blows inflicted by the accused had caused Mr. Hollett's death. Counsel for Constable Cluett referring to the evidence as to the cause of death and the point at which the injuries occurred stated:

"Here, it's all basically circumstantial, it's a guesswork process according to Dr. Stanish and Dr. Petrie and Dr. Holness."

"The phrase 'a formula to assist in applying the accepted standard of proof' is obviously taken from the reasons for judgment of Spence, J., in R. v. Mitchell, at p. 479, and the phrase 'graphic illustration of the principle of reasonable doubt' was taken from what was said in this court in John v. The Queen, supra, at p. 791, where the Mitchell case was expressly approved. In both these cases, when the language referred to is read in context, it is found to apply only to 'the commission of the act as distinct from the intent which accompanied that act'. I can find nothing in the recharge to indicate that the Hodge test, where it applies, does not contain a formula to assist in applying the accepted standard of proof, nor is there anything to suggest that the formula does not afford a graphic illustration of that principle in such cases."

2. THAT the Learned Trial Judge misdirected the jury in the law relating to the application of Section 450 of the Criminal Code." [*page30]

The learned trial judge read Section 450(1) and (2) of the Code to the jury as indicating the power of the police to effect an arrest. Before doing so he referred to the various Provincial statutes and s. 25 of the Code. In reading s. 450 of the Code the trial judge did not refer to subs. (3). After reading subsecs. (1) and (2) he continued:

"The police officer is not to take a person into custody if the conditions under that sub-section (d) can be met and satisfied and provided there are no reasonable grounds for the police officer to believe that the person will fail to turn up in court. Under that sub-section he may do those things where he has reasonable and probable grounds including the circumstances, where he has reasonable and probable grounds to believe that the public interest, having regard to all the circumstances, including the need to establish the identity of the person, secure or preserve evidence of or relating to the offence, prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person and he has no reasonable grounds to believe that if he does not so arrest the person, the person will fail to attend in court in order to be dealt with according to law. The cases which have been decided by the courts indicate that where an arrest is made for a summary conviction offence, it is not sufficient for the police officer to show that he had reasonable and probable grounds to believe the offence had been or was about to be committed. He must go further and show that he found a situation in which a person was apparently committing an offence or had committed one. Police officers have the right to investigate a complaint. The defence says to you that the accused found Hollett committing offences, violations of the Motor Vehicle Act, Bridge Commission By-Laws and so on and that, therefore, they were acting within their lawful authority. On the other hand, the Crown says the accused persons were, in effect, acting beyond their authority to pursue Hollett after obtaining his name and where he lived. In addition, the defence says it was within their authority, that is, the authority of the accused, to pursue Hollett to determine whether he was a missing person from the Nova Scotia Hospital and that they were so reminded of that by the Police Department. Now I have mentioned the Motor Vehicle Act and I have mentioned provisions of the By-Laws of the Bridge Commission and I have mentioned a section of the Hospitals Act. [*page31]

You have heard considerable evidence with respect to the status of a patient who is voluntary or committed. You will have to assess and consider the evidence on this subject. It will be for you to decide what significance you feel the involvement of the missing person from the Nova Scotia Hospital bears upon these events. I should also read to you in this discussion, Section 25 of the Criminal Code. Now Section 25 of the Criminal Code says that -

'Everyone who is required or authorized by law to do anything in the administration or enforcement of the law, as a private person, as a peace officer or public officer, in aid of a peace officer of public officer, or by virtue of his office' -

So, let me come back. Everyone who is required or authorized by law to do anything in the administration or enforcement of the law, in the capacity of these men, 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 is respectfully submitted that the effect of this direction to the jury is that if a police officer has not complied with s. 450(2) he is not in the lawful execution of his duty and therefore, is acting illegally.
It is respectfully submitted that the effect of this direction to the jury is to suggest that if a police officer has complied with s. 450(2), he is not in the lawful execution of his duty and therefore is acting without authority and unlawfully."

"It is submitted that if it is established a peace officer has failed to meet the requirements of subparagraph (2) that he is deemed to be acting lawfully by subsection (3)." [*page32]

"A peace officer may arrest without warrant a person whom he finds committing an offence or has reason to believe has recently committed an offence under this Act."

"Except where and to the extent that it is otherwise specially enacted, the provisions of the Criminal Code of Canada, as amended or re-enacted from time to time, applicable to offences punishable on summary conviction apply, mutatis mutandis, to every proceeding under this Act."

"It is respectfully submitted that the appellant was acting in the lawful execution of his duty in accordance with the procedures of s. 450(2) and s. 450(3)."

3. THAT the Learned Trial Judge misdirected the jury in instructing them that the burden of proving lawful execution of duty remained with the appellant."

This ground stems from the trial judge's reference to the possibility of arresting or detaining Mr. Hollett under various Provincial statutes to which I have referred. In the first instance he left to the jury the question as to whether the officers were acting under one or more of those statutes in pursuing Mr. Hollett. This led to the following submission of counsel:

"It is submitted that in light of the above charge by the Learned Trial Judge that he did err by leaving the inference that violations of the Halifax-Dartmouth Bridge Commission Act only applied or provisions of the Motor Vehicle Act only applied if 'he were so charged'. It is respectfully submitted that the Learned Trial Judge minimizes the officers' right to stop Mr. Hollett and investigate whether an offence was being or had been committed and accordingly, the jury would be left with the impression that if Hollett's actions were subsequently found to be lawful or that he was not charged, that the officers would not have been entitled to arrest him. It is respectfully submitted that by appearing to equate the legitimacy of the officers' conduct in pursuing and arresting Mr. Hollett whether or not Hollett was subsequently charged, the jury was left the impression that what was important was not what was apparent to the police officers at the time as was held by the Supreme Court [*page34] of Canada in R. v. Biron (1975), 23 C.C.C.(2d) 513 (S.C.C.) but whether the breach of the various Acts turns out to be a breach or not."

"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. Likewise, if the person to be arrested takes flight and avoids arrest, the peace officer and every one assisting the peace officer is justified 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 defence says that the two accused persons were acting in the lawful execution of their duties throughout and it was Hollett who unlawfully assaulted O'Donnell and that in response, both police officers acted reasonably and without excessive force. The position of the Crown is that the accused persons unlawfully assaulted Hollett and caused his death, meaning to cause it or meaning to cause Hollett bodily harm knowing that it was likely to cause his death and that they were reckless whether death ensued or not. The burden is upon the Crown to satisfy you of this beyond a reasonable doubt."

4. THAT the Learned Trial Judge misdirected the jury in that he failed to define the words, 'obstructing a peace officer in the lawful execution of his duty', and he failed to point out that resisting arrest is a distinct and separate offence from [*page35] that of obstructing a peace officer."

In referring to these provisions the trial judge stated:

"Since the two accused are police officers, I should also tell you that Section 118 of the Criminal Code provides that -

'Every one who resists or wilfully obstructs a police officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer is guilty of an offence.'

'Every one who assaults a public officer or peace officer engaged in the execution of his duty, or a person acting in aid of such an officer, assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person.'

"The third point, Mr. Foreman, Ladies and Gentlemen, is that I feel that I should have added this to the discussion we had today, that where a person is seen by a police constable committing an infraction of a Statute by which he is given authority to act, the police officer is able to establish the identity of the person. Where there is a refusal of a citizen to identify himself, it causes a major inconvenience and obstruction to the police in carrying out their duties. Obstruction of a police officer is an indictable offence under Section 118 for which the police officer can arrest without warrant. Whether a person has identified himself is a question of fact."

58     The fifth ground of appeal states:

5. THAT the Learned Trial Judge misdirected the jury on Section 25 of the Criminal Code."

The substance of this ground is set out in Mr. O'Donnell's factum as follows:

"It is respectfully submitted that the Learned Trial Judge erred on his instructions regarding s. 25 by failing to instruct the Jurors that a peace officer cannot be deemed to be in breach of s. 25(3) of the Code, merely because in the final result, grievous bodily [*page37] harm resulted, unless he intended the result.
It is further submitted that the Learned Trial Judge erred by not instructing the Jury that it is the belief of the police officers in light of all the circumstances that is the most important consideration.

It is further respectfully submitted that the Learned Trial Judge erred by not defining the words 'grievous bodily harm' as used in s. 25(3).

It is also submitted that the Learned Trial Judge erred in not instructing the Jurors that when determining whether the force used by the appellant and Cst. Cluett was necessary, the officers were not by law expected to measure the degree of force used to a nicety."

Q. Tell me Constable O'Donnell back on July the 27th 1980, did you ever intend to cause bodily harm to Earle Frederick Hollett?
A. Definitely not Sir.
Q. At any time Sir, did you know that the punches that you threw that struck Mr. Hollett in the facial area, were likely to cause his death?
A. No, Sir."

While the direction on s. 25 in this case was far from satisfactory, the jury was repeatedly told that if the officers were acting in the execution of their duties they were entitled to use "as much force as is necessary for that purpose". [*page38] That instruction was very favourable to the accused.
59     I am unable to find any substance in this ground of appeal.
60     While ground six was abandoned on the appeal, I have already made a brief reference to the defences of provocation and self-defence.
61     Ground seven is as follows:

7. THAT the Learned Trial Judge erred in his instructions to the jury in failing to relate the evidence of each of the witnesses adduced by cross-examination with how the evidence compared with the evidence adduced through direct examination and in particular, the Learned Trial Judge did not review the highly technical medical evidence."

This ground deals essentially with the conflicts in the evidence and whether the trial judge carefully reviewed the evidence in relation to issues before the jury. Having regard to the conduct of the trial there is no merit in this ground. Counsel spent days examining and cross-examining each witness in an effort to point out the minutest discrepancies in the testimony. The testimony was again reviewed in detail in the summations. The trial judge fully instructed the jury as to the manner in which they were to consider the testimony of the witnesses. He also reviewed the issues and the evidence in detail. While it is true he did not review all of the discrepancies in the evidence there was no need to do so in the circumstances.
62     As grounds eight and nine were abandoned, I will consider ground ten, which is as follows:

10. THAT the Learned Trial Judge erred in law by not instructing the jury that in determining the cause of death, they must be satisfied beyond a reasonable doubt that the acts of the appellant were the substantial cause of death."

In support of this ground of appeal reference was made by counsel to the following direction of the trial judge:

"The Crown seeks to establish the cause of death principally through the medical evidence of doctors whom you have heard and the lay witnesses who attest in a variety [*page39] of ways to what they said they saw. You have to weigh, consider and assess all that evidence to decide what I shall call the issue of causation. You must decide this question on the whole of the evidence which bears upon this subject. The issue of causation is for you. The weight to be given to the evidence of the experts is entirely for you. You are entitled to consider all of the evidence, both expert and lay, and to accept or reject any part. To prove that the accused persons caused the death of Hollett, the Crown must establish that the acts of the accused persons were a contributing cause of death, outside what the law has generally described as the de minimus range. Even if such acts alone would not have caused death, they are a legal cause so long as they contributed in some way to the death. There are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause injury, render the actor guilty of culpable homicide. For example, the most trivial assault, if it should through some unforeseen weakness in the deceased, cause death, will render the actor guilty of culpable homicide, which as I have indicated, can be either murder or manslaughter, but as I have said, you must be satisfied that the Crown has produced the evidence of causation upon which you can make such a finding beyond a reasonable doubt. One who assaults another, must take him as he finds him. There must be an unlawful act and if there is an unlawful act, then even if that unlawful act, alone, would not have caused the death, it is still a legal cause, so long as it contributed in some way to death. You see, the Crown has to satisfy you and you must be able to find on the evidence that there is a causal connection between the alleged punch or punches of the accused and generally the way these two accused persons are alleged by the Crown to have handled Hollett, and the death of Hollett, and that the actions of the accused were unlawful."

"That is to say that the bodily injury need not be the sole factor leading to the death of the human being. [*page40] Where that human being would have died from some other cause existing at the time the bodily injury was inflicted, it is enough that the bodily injury hastened the death of the human being. If the injuries hastened an inevitable death, the inevitability of that death cannot alter a finding that the accused caused bodily injury resulting in death. You have heard during the course of this trial, opinions expressed in the evidence given by several witnesses, including medical doctors, with respect to the physical condition of the deceased. Opinions have also been expressed with respect to the cause or probable causes of death. You will have to consider all of that evidence carefully as well as the whole of the evidence since causing the death is an essential ingredient. No one has the right to shorten the life of a human being. If you find that the Crown has proved to your satisfaction, beyond a reasonable doubt, that the accused person caused bodily injury to the deceased, and that that bodily injury resulted in the death of Earl Frederick Hollett, you must find that the accused person caused the death of the deceased, notwithstanding that that death was inevitable due to a disorder arising from some other cause, but that proof has to be to your satisfaction and beyond a reasonable doubt. If the injuries accelerated the death, the question whether the deceased was in a weak state of health at the time they were inflicted is immaterial. But as I have said, and I repeat again, all of this must be established by the Crown to your satisfaction and that is, beyond a reasonable doubt. There has been much discussion during this trial of the cause of death. What was the cause? Who caused it? Where did it occur? One fact that is not an issue is the fact that Hollett is dead. I am sure you are familiar with the run of evidence that surrounds the subject of cause of death and I want to make some comment on that subject and again, at the risk of repetition, mention that cause is important because cause takes us back to the word that we find repeated so frequently through the Sections of the Code that I mentioned to you when I started talking about this subject earlier on this morning."

"Whether that be so or not, and we do not propose [*page41] to give that passage the court's blessing today at all events, if one looks at the circumstances of the present case with any real sense of reality, we think there can be no doubt that when the judge was talking about contribution the jury knew perfectly well that he was talking about something more than the mere de minimus contribution. We have given this point particular care in our consideration of the case because it worried us to some extent originally, but we do feel in the end, having looked at all the circumstances, that there could not have been any question in this case of the jury making the mistake of thinking that the contribution would suffice if it were de minimus. Therefore in our judgment there is no substance in the attack of counsel for Cato on the basis of causation, whether it be an attack on the available evidence or on the trial judge's treatment of that evidence."

"The second sub-question raised is whether there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death. In answer to this question it may shortly be said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. It is immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the appellant may, or may not, have contributed. No question of remoteness or of incorrect treatment arises in this case."

11. THAT the Learned Trial Judge erred in not directing the Crown to call witnesses for purposes of cross-examination requested by the defence whose names appeared on the Bill of Indictment."

This ground arises from a request by the defence that the Crown call certain witnesses whose names appeared on the indictment. The witnesses were made available to the defence. The Crown took the position that the witnesses would not enhance the Crown's case and in fact would only be adverse to the Crown. The trial judge was satisfied that the Crown was not acting with any improper motive in taking that position. The witnesses were called by the defence. Each witness called was examined by one defence counsel and then cross-examined by the other defence counsel. In effect counsel were permitted to cross-examine their own witnesses. The defence suffered no disadvantage on that account. I am satisfied that the practice followed by the Crown in this case was completely in accord with the decision of the Supreme Court of Canada in Lemay v. The King, 102 C.C.C. 1.
65     Ground twelve is as follows:

12. THAT the Learned Trial Judge misdirected the jury on the meaning of reasonable doubt."

I am unable to find any merit in this ground. In instructing the jury on reasonable doubt the trial judge stated:

"I now wish to discuss with you the concept of the presumption of innocence and the doctrine of reasonable doubt. In a criminal case the accused is presumed to be innocent until the Crown has proven his guilt to you beyond a reasonable doubt. It is not the responsibility of the accused to establish or demonstrate or prove that he is innocent. If the Crown fails to prove guilt beyond a reasonable doubt, you must acquit the accused. Proof beyond a reasonable doubt has been achieved when you as a juror feel sure of the guilt of the accused person. It is that degree of proof that convinces the mind and satisfies the conscience so that you feel bound or compelled to act upon it. It may happen that the evidence which you have heard leaves you with some lingering or nagging doubt with respect to the proof of some essential element of the offence. If that happens and you are unable to say to yourself with confidence that the Crown has proven guilt beyond a reasonable doubt then your duty is to [*page43] acquit the accused person.

I am, here, not referring to a fanciful or whimsical doubt but rather to a real doubt. In this case each of the accused persons gave evidence. Each of them is in exactly the same position as any other witness with respect to a finding of credibility. Shortly, I will instruct you as to how to weigh the evidence, but for the present, let me tell you that if you believe the accused person that he did not commit the offence or that what he did lacked some essential element of the offence, or if the evidence of the accused person either standing alone or taken together with all the other evidence leaves you in a state of reasonable doubt you must acquit him."

The standard of conduct of Crown counsel was discussed by the Supreme Court of Canada in Boucher v. The Queen, [1955] S.C.R. 16, and Pisani v. The Queen, [1971] S.C.R. 738. In Pisani, Laskin, J., (as he then was), stated at p. 740:

"The reasons for judgment given separately in Boucher by Kerwin, C.J., Rand, Locke and Cartwright, JJ., amply point up the obligation of Crown counsel to be accurate, fair and dispassionate in conducting the prosecution and in addressing the jury. Over-enthusiasm for the strength of the case for the prosecution, manifested in addressing the jury, may be forgivable, especially when tempered by a proper caution by the trial judge in his charge, where it is in relation to matters properly adduced in evidence. A different situation exists where that enthusiasm is coupled with or consists of putting before the jury, as facts to be considered for conviction, matters of which there is no evidence and which come from Crown counsel's personal experience or observations. That is the present case." [*page44]

"You are not allowed to get fed up anymore because of what people will say 'Aha, boom, we know where he is now - crazy again'.
But, the 'strangeness' this is what we've got to concentrate on, because according to these two individuals here, this man was totally in a psychotic state.
Now, bear in mind we're trying to determine whether Earle Frederick Hollett was a raving lunatic that day."

"So, what indeed happened there insofar as the cause of death is concerned, is that there were breaks and breaks and breaks by the first movements, and the coup de grâce was when he went into the van.

They didn't run over him with the truck. But, what I am saying, Ladies and Gentlemen, is that there was a recklessness, there was a viciousness in that man right there, that he didn't give a damn. He just did not give a damn at that particular point in time, what happened to that individual, and that is what I am talking about."

"No, this is not a question of murder here this should be a question of commendation, the tolerance that was shown by this man from the street to the van is unreal. Medals. If we accept what the accused is saying. Letter of commendation should be going to these two men, . . ."

14. THAT the Learned Trial Judge erred in not instructing and directing the jury that the only evidence that they were to consider was evidence that they had heard on the witness stand and that the jury was to exclude any source of information relating to the trial other than evidence adduced in the courtroom."

I find no merit in this ground of appeal. In his opening address to the jury the trial judge told the jury that they must "take nothing into your consideration that is not presented to you as evidence in this trial." He also told them to exclude from their minds anything they heard or read about the case. In his closing address he instructed the jury that in determining guilt or innocence they were to be governed solely by the evidence on the trial.
72     Ground fifteen is as follows:

15. THAT the verdict of conviction against the appellant is inconsistent with the acquittal in favour of David Bronson Cluett and further that the verdict of a conviction is unreasonable and unsupported by the evidence that did not establish beyond a reasonable doubt the essential ingredients of the offence."

The Crown argues on the appeal against Constable Cluett's acquittal that the verdict is inconsistent with the conviction of Mr. O'Donnell. It is clear from my general comments respecting the issues in this case that the verdicts were not contradictory if one took the view that Mr. O'Donnell alone used excessive force. If, of course, both Constables were acting unlawfully and assaulted Mr. Hollett and that assault caused the death of Mr. Hollett then one could validly argue that the verdicts were indeed contradictory. There [*page46] was ample evidence to support the conviction of Mr. O'Donnell simply on the basis that excessive force was used in subduing Mr. Hollett. In view of that fact and the erroneous instructions to the jury on the application of s. 25 of the Code, one cannot say the verdicts were violently at odds or that no reasonable jury could convict Mr. O'Donnell. See R. v. McLaughlin, 15 C.C.C.(2d) 562, and Koury v. The Queen (1964), 43 D.L.R.(2d) 637.
73     Ground sixteen is as follows:

16. THAT the Learned Trial Judge's charge is confusing and not understandable by a jury."

This apparently stems from a request by the jury to hear a replay of the main part of the Judge's charge. One can only speculate on the reasons for the jury's request which was certainly not unusual. There is no question that the charge was unnecessarily long but that was due in large measure to the way in which the evidence was presented and the issues were raised by counsel. The remaining arguments under this ground deal with the manner in which the trial judge related the evidence to the issues and I have already commented on those points.
74     Ground seventeen was added on the hearing of the appeal and provides:

17. THAT the Learned Trial Judge erred in law in that he failed to define the meaning of 'reckless' as contained in Section 212(a)(ii) of the Criminal Code."

I have difficulty in seeing the relevance of this ground of appeal as the jury found Mr. O'Donnell not guilty of murder. It has never been the practice, certainly in this Province, to define the term "reckless" to the jury in referring to culpable homicide under s. 212 of the Code. The word in s. 212 should be given its ordinary meaning. I see no need to import the concepts of advertence or inadvertence into the section, which would only lead to confusion. I am not aware of any difficulty being experienced by juries in applying s. 212 of the Code. In a case of death from bodily harm the evidence must clearly show the accused knew that death was likely to result before a jury will convict of murder. Obviously the jury was not prepared to draw that inference in this case notwithstanding the forceful argument made in support of such a verdict by the Crown. [*page47]
75     While there were errors in the charge, I am satisfied that they were all favourable to the accused O'Donnell. I do have some concern regarding the complicated nature of the charge. In the final analysis, however, the jury must have concluded that Mr. O'Donnell used excessive force and there was ample evidence to support that conclusion. In the result I would dismiss Mr. O'Donnell's appeal and confirm his conviction.
76     I will now deal with the Crown's appeal against Constable Cluett's acquittal.
77     The first ground of appeal is as follows:

"(1) That the learned trial judge erred in law in his instructions to the jury respecting parties to an offence;"

"The learned trial judge failed to instruct the jury on the vital question of the requisite intent of the respondent in relation to the charge of manslaughter."

"So, I suggest to you that the accused did in fact commit homicide here. Now, did they do it by means of an unlawful arrest? If we accept the evidence of the witnesses in this case, if we accept what the witnesses, the fourteen eyewitnesses are telling us, did they cause that man's death by means of an unlawful act? If we accept the evidence of the witnesses there is no evidence, no evidence whatsoever that that man was placed under arrest. If we accept the evidence of the witnesses and not accept that of the accused, what we had was two police officers going to a person, grabbing him, forcibly hauling him back to the van, and forcibly striking him. So, if we accept what the eyewitnesses are telling us there was no arrest whatsoever, no evidence of an arrest whatsoever. So if there is no arrest we've got no question of lawfulness, because there was no arrest to begin with. So, what you have to look at is what did they do. They assaulted the man. They assaulted him repeatedly time and time again, which by itself is an unlawful act."

"And, Section 217 of the Criminal Code says:

'Culpable homicide that is not murder or infanticide is manslaughter.'

Well, infanticide has no bearing upon this case. That has to do with a child. So, culpable homicide that is not murder is manslaughter. Now, let me give you an illustration of the difference between murder, being the crime with which the accused person is charged in this case, and manslaughter."

"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, but the Crown must still prove to you beyond a reasonable doubt, that the accused person caused Earl Frederick Hollett's death by means of an unlawful act and that the accused person committed it upon him. You will see from what I have said, that the Crown to succeed on a charge of manslaughter, must prove to your satisfaction, beyond a reasonable doubt, both of the following items:

1. That the accused person caused the death of Earle Frederick Hollett on or about the 27th day of July, 1980 at or near Dartmouth in the County of Halifax, Nova Scotia.
2. That the accused person caused the death of Earle Frederick Hollett by means of an unlawful act, namely, by assault."

No serious objection could be taken to that portion of the Charge.
81     In view of the evidence it was open to the jury to find that Constable Cluett either assaulted Mr. Hollett in seizing him, or aided and abetted Mr. O'Donnell in assaulting Mr. Hollett, or in using excessive force. The trial judge read s. 21(1) and (2) of the Code to the jury and then said:

"This means that if any person does, or omits to do something for the purpose of aiding another person to commit an offence, then such person who aids or abets is just as guilty of the offence as is the person who actually commits the offence. In other words, a person who aids or abets another person in the commission of an offence is not merely guilty of aiding or abetting, he is guilty of the offence itself. 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. If he aided or abetted without any [*page50] guilty intent, he cannot be found guilty of the offence itself. It is apparent from the facts of this case that both O'Donnell and Cluett at the same time were at least touching Hollett. There is evidence before you to suggest that Cluett had hold of Hollett when O'Donnell threw a punch or punches at Hollett. The implications of that evidence you will have to consider. It is clear that the mere presence at the scene of an offence is not sufficient to ground liability under sub-section (1) of this Section 21 that I have referred to. There must be more. There must be encouragement of the principal, the act which facilitates the commission of the offence or an act which tends to prevent or hinder interference with the accomplishment of the criminal act. Passive acquiescence is not sufficient. Presence at the scene of an offence can be evidence of aiding and abetting only if it is accompanied by other factors such as prior knowledge of the principal's intention to commit the offence or attendance for the purpose of encouragement, or the doing of anything for the purpose of aiding a person to commit an offence. To aid or abet the commission of a crime, a person must associate himself with the criminal venture by participating in it and trying to make it succeed, and by actively encouraging it or urging that it occur. Remember, it is no criminal offence to stand by. A mere passive spectator to a crime, no matter how serious the offence, is not guilty of an offence. There must be intentional encouragement or assistance in the commission of the crime for an accused to be guilty of aiding or abetting. A person who actually commits an offence is a party to the offence. To find that an accused person is guilty on the basis of aiding or abetting, it is not sufficient for the Crown to prove that his acts or omissions, in fact, had the effect of aiding or abetting the commission of the crime; the Crown must also prove beyond a reasonable doubt that he did the acts or omitted to do something for the purpose of, or with the intention of, aiding or abetting the commission of the crime."

"I should like to adopt two short passages from a case note on R. v. Larkin (1942), 29 Cr. App. R. 18, by G.A. Martin, as he then was, which appeared in 21 Can. Bar. Rev. 503 at pp. 504-5 (1943):

'There are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide, e.g., the most trivial assault, if it should, through some unforeseen weakness in the deceased, cause death, will render the actor guilty of culpable homicide.
. . . .
In the case of so-called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least. The act of the accused in R. v. Larkin fell within the class of intentional crimes because he was engaged in committing an assault upon Neilsen, and the fact that he caused a different type of harm to that which he intended did not free him from criminal responsibility.'

The Crown was under no burden of proving intention to cause death or injury. The only intention necessary was that of delivering the kick to Cobby. Nor was foreseeability in issue. It is no defence to a manslaughter charge that the fatality was not anticipated or that death ordinarily would not result from the unlawful act.

In R. v. Cato et al. (1975), 62 Cr. App. R. 41, the act supporting the manslaughter conviction was the injection by the accused into another person of morphine which the accused had unlawfully taken into his possession. Attention was directed to causation, and the link alleged to exist between the injection of morphine and the death. The appellant's argument based on the [*page52] medical evidence of causation and the rejection of that argument by the Court of Appeal are to be found in the following passage, pp. 44-5:

'First of all, he invited us to look at the evidence of causation, and he pointed out that the medical evidence did not at any point say "This morphine killed Farmer"; the actual link of that kind was not present. The witnesses were hesitant to express such a view and often recoiled from it, saying it was not for them to state the cause of death. It is perfectly true, as Mr. Blom-Cooper says, that the expert evidence did not in positive terms provide a link, but it was never intended to do so. The expert witnesses here spoke to factual situations, and the conclusions and deductions therefore were for the jury. The first question was: was there sufficient evidence upon which the jury could conclude, as they must have concluded, that adequate causation was present?

The third sub-question is whether there was evidence from which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the aspiration. It is contended that the burden on the Crown was to prove beyond a reasonable doubt that the kick caused both the vomiting and the aggravated condition of aspiration. I do not agree. A person commits homicide, according to s. 205(1) of the Code, when directly or indirectly, by any means, he causes the death of a human being. Once evidence had been led concerning the relationship between the kick and the vomiting, leading to aspiration of stomach contents and asphyxia, the contributing condition of a malfunctioning epiglottis would not prevent conviction for manslaughter. Death may have been unexpected, and the physical reactions of the victim unforeseen, but that does not relieve the appellant.

In R. v. Garforth, [1954] Crim. L.R. 936, a decision of the Court of Criminal Appeal of England, the accused, aged 16, and another young man, S, quarrelled with the deceased, aged 18, outside a dance-hall. S kicked the deceased and when he doubled up stabbed him in the neck and heart, then the accused kicked him on the body and legs and S kicked him on the head. S was found guilty of murder and the accused was found guilty of manslaughter. The accused appealed against his conviction [*page53] on the ground there was no evidence that what he did was a cause of death. It was held, dismissing the appeal, that there was clear evidence that the accused unlawfully assaulted the deceased and inflicted minor injuries which contributed to the death. Had the jury found that the accused intended to do grievous bodily harm, he would have been guilty of murder."

"In order to find the appellant guilty of aiding, abetting, counselling or procuring, it is only necessary to show that he understood what was taking place and by some act on his part encouraged or assisted in the attainment thereof: R. v. Kupferberg (1918), 13 Cr. App. R. 166. (See also Dunlop and Sylvester v. The Queen, 47 C.C.C.(2d) 93.)"

"In the present case, therefore, it was the duty of the Crown, in order to obtain a new trial, to satisfy the court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury."

Accused's appeal dismissed;
Crown appeals allowed.