Constable Trevor Ian James Lindsay (“Cst. Lindsay”) was a constable with the Calgary Police Service. In 2015, Cst. Lindsay and his partner arrested Daniel Haworth (“Mr. Haworth”) for theft. Cst. Lindsay and his partner drove Mr. Haworth to Calgary Court Services for arrest processing. CCTV footage from a nearby building captured Cst. Linday and Mr. Haworth interacting briefly next to the police vehicle, followed by Cst. Lindsay punching Mr. Haworth multiple times in the face and the back of the head. The footage also appeared to show Cst. Lindsay throwing Mr. Haworth onto the pavement. Mr. Haworth was escorted to the hospital by an ambulance, suffering a skull fracture and a brain injury. Mr. Haworth died a few months later from an unrelated drug overdose.
The Charges and Defences
Cst. Lindsay was charged with aggravated assault under section 268 of the Criminal Code. He relied on section 25 (protection of persons administering and enforcing the law) and section 34 (defence of self and others) in his defence.
Section 25 provides that a police officer is justified in using force to effect a lawful arrest, provided the officer acted on reasonable and probable grounds and only used as much force as was necessary in the circumstances: R v. Nasogaluak, 2010 SCC 6. In order to assess reasonable grounds, the court must put itself in the officer’s shoes and assess whether there was an objectively reasonable basis, given the circumstances faced by the officer, for the officer’s actions. Finally, the court must determine whether the officer used unnecessary force given the circumstances.
Section 34 of the Code similarly requires a reasonable belief that a force or threat of force is being used against an individual or someone else.
In essence, both section 25 and section 34 defences require that the force used by a police officer acting in self-defence be no more than necessary to allow them to defend themselves or effect an arrest.
Trial Decision (2019 ABQB 462)
At trial, the Crown conceded that Mr. Haworth’s arrest was lawful and justified; therefore, the first element of section 25 was met. The trial judge noted that the defence counsel conditionally conceded the elements of aggravated assault by saying that if Cst. Lindsay’s use of force against Mr. Haworth was not protected by sections 25 or 34 of the Criminal Code, the elements of aggravated assault were present and Cst. Lindsay would not have any other defence.
Therefore, the key issues at trial were as follows:
- whether Cst. Lindsay had reasonable grounds to believe that Mr. Haworth was going to split blood, saliva or both at him; and
- whether Cst. Lindsay used proportionate force in seeking to prevent that from occurring.
The court considered whether Cst. Lindsay had reasonable grounds to use force against Mr. Haworth and reasonable grounds to believe he or his partner or both were experiencing force or a threat of force from Mr. Haworth and whether the force used by Cst. Lindsay was more than necessary.
To determine whether Cst. Lindsay had reasonable grounds for using force, the court first considered what grounds existed and what Cst. Lindsay knew about them.
According to Cst. Lindsay, Mr. Haworth did not comply with his direction to face forward and became physically and verbally resistant. At trial, he testified that he punched Mr. Haworth to get him to face forward. At that point, Cst. Lindsay perceived that Mr. Haworth spat blood on him. Cst. Lindsay testified that given he knew Mr. Haworth was a heroin user, he was terrified that if Mr. Haworth spat blood towards him again, that he or his partner might contract a serious infectious disease. According to Cst. Lindsay, he told Mr. Haworth not to spit again and to pre-empt further spitting, he punched Mr. Haworth three times, put him off balance and attempted to put him on the ground. Cst. Lindsay testified that he mistakenly grabbed the hood of Mr. Haworth’s hoodie rather than the collar and was unable to control Mr. Haworth’s descent towards the pavement, resulting in Mr. Haworth striking the ground harder than he intended.
Concerning the first strike, the trial judge accepted that Cst. Lindsay was subjectively terrified of a spitting attack by Mr. Haworth; however, the trial judge concluded that Cst. Lindsay did not have reasonable grounds to fear an imminent spitting attack or even that one was being planned; therefore, Cst. Lindsay’s first strike was not anchored in reasonable grounds.
The trial judge found that the first time Cst. Lindsay perceived that Mr. Haworth spat blood, Mr. Haworth spat in the opposite direction facing away from the officers.
Further, the trial judge found that the spitting had occurred after Cst. Lindsay had punched Mr. Haworth in the face for the first time, resulting in a bloody face or mouth consistent with Mr. Haworth having the physiological need to spit blood. The trial judge also found that there was no evidence that Mr. Haworth was spitting at or in the general direction of the officers, which he noted was the basis for Cst. Lindsay’s perception of being spat at. The trial judge recognized that Cst. Lindsay may have assumed from seeing blood on the window of the police vehicle that Mr. Haworth intended to spit again and inferred that he did spit again, but there was no evidence of any basis for that inference or perception.
When considering Cst. Lindsay’s three additional punches and throwdown of Mr. Haworth on the pavement, he considered Cst. Lindsay’s basis for doing so – being spat at. Given the trial judge’s conclusions that there was no evidence to support that Mr. Haworth actually spat or made an attempt to spit again, the central ground – being spat at – was not objectively reasonable. The trial judge did however find that Mr. Haworth, having spit blood, on its own, was a reasonable ground for use of force to prevent a risk or accidental or careless blood exposure to Cst. Lindsay’s partner.
To determine whether Cst. Lindsay used proportionate force; the test considered by the trial judge is whether the use of force was objectively reasonable in light of the circumstances faced by Cst. Lindsay.
The trial judge found that although there were reasonable grounds for Cst. Lindsay’s use of force to prevent accidental or careless spitting towards his partner, he found that Cst. Lindsay’s use of force was excessive and that other reasonable options were available which would have posed no risk of injury to Mr. Haworth, such as moving him towards the rear of the vehicle and away from Cst. Lindsay’s partner.
Ultimately, the trial judge held that neither defence under section 25 nor section 34 of the Criminal Code were available to Cst. Lindsay. Further, the trial judge noted that in light of the defence counsel’s concessions that the elements of aggravated assault were present in this case, and with neither defence being available to him, Cst. Lindsay was guilty of aggravated assault under section 268 of the Criminal Code.
Court of Appeal Decision (2022 ABCA 424)
The majority of the Alberta Court of Appeal upheld the trial judge’s decision and dismissed the defence’s appeal. The majority found that the trial judge made comprehensive and detailed findings of fact supported by the evidence and his findings were owed deference.
Supreme Court of Canada
In a unanimous decision, the Supreme Court of Canada dismissed the appeal and upheld the conviction disagreeing with Cst. Lindsay’s submissions that the trial judge misinterpreted the concession of defence counsel that if an assault occurred, it was an aggravated assault. The Supreme Court also noted that the defence had not raised this issue on appeal at the Court of Appeal.
Police officers often find themselves in circumstances that require them to act quickly to ensure their safety and the safety of others. While the court must take a flexible approach to assess the conduct of police officers in light of the circumstances, this case serves as a caution that the court may be less likely to find reasonable grounds for use of force or that the force used was proportionate in cases where the threat arises from bodily fluid. In this case, the accused was already arrested and handcuffed for a minor and non-violent crime. Even though Cst. Lindsay felt a genuine fear for his and his partner’s safety, given the circumstances and the lack of evidence to support that his fear was objectively reasonable, he could not rely on sections 25 or 34 of the Criminal Code.