Background

Police observed Petros Negash driving a vehicle with a burnt-out tail  light and brake light and pulled him over. Once stopped, Mr. Negash rolled down his driver’s side window a few inches and he was asked to produce his driver’s license. He did not do so. Mr. Negash began to record the interaction and repeatedly asked why he was stopped. An officer told Mr. Negash that he was under arrest for possession of drugs for the purpose of trafficking and that he would explain it after he stepped out of the vehicle.

Mr. Negash did not comply with demands to open his door or window and his car remained running. The arresting officer advised him that continued non-compliance would result in smashing the vehicle’s window.

Mr. Negash did not comply, and the arresting officer smashed the window of the driver’s door with his baton. Mr. Negash then sped away and drove through a red light on a downtown street while fleeing. After travelling about four blocks, he abandoned the vehicle and ran. The officers pursued him and eventually tasered Mr. Negash, using physical force to arrest him.

The refusal to produce a drivers license upon the request of an officer is an offence under the Manitoba Highway Traffic Act. The trial judge accepted that the traffic stop was valid but the officers did not have reasonable grounds to make an arrest for possession of drugs. Nonetheless, Mr. Negash was under a legal obligation to remain at the traffic stop until it was complete. He was charged with resisting arrest, fleeing from police, and driving dangerously. Mr. Negash argued that his flight from police was to defend himself from police (self-defence) and that he had reasonably no alternative other than to flee (necessity). Underlying Mr. Negash’s defence was the allegation that he was wrongfully targeted by police because of his race.

Self-defence

The statutory elements of self defence are codified in section 34 of the Criminal Code. A person is not guilty of an offence if:

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

In determining whether the act was reasonable in the circumstances, the court is to consider the relevant circumstances of the person, the other parties, and the act, including the nature of the use of force or threat, the extent to which the use of force was imminent, whether there were other means available to respond, and the nature and proportionality of the person’s response to the use or threat of force.

Necessity

The defence of necessity is a common law defence set out in R v. Latimer, 2001 SCC 1. Necessity is rarely applied and is restricted to rare cases of true involuntariness. To establish that an accused’s actions were made out of necessity, three elements must be present:

• there was an imminent peril or danger;
• the accused must have had no reasonable legal alterative to the course of action he or she undertook; and
• there must be proportionality between the harm inflicted and the harm avoided.

Decision and Appeals

Mr. Negash testified at trial that he did not expect the officer to smash his window and that he panicked and took off. In cross-examination, Mr. Negash stated he believed that police would have hit him across his face with batons if he stayed at the scene. In finding that self-defence did not apply, the judge held that there was an insufficient evidentiary basis as to why Mr. Negash believed he needed to defend himself from police, that he was at risk of imminent harm or that his reaction to flee was necessary in the circumstances. The allegations of racial profiling were found to be unsubstantiated by the evidence.

The trial judge found that Mr. Negash was not acting “logically” after being directed by the police to exit his car and produce his driver’s license. Mr. Negash was told the consequences of failing to open the window, and that while he panicked, it was not a “reasonable course of action” to flee from police at a roadside stop in his car as doing so put both officer safety and public safety at risk.

Ultimately, Mr. Negash was acquitted for resisting arrest and convicted for motor vehicle flight from police and driving dangerously. He appealed his convictions on the basis that the trial judge improperly considered the defences of self-defence and necessity in finding that there was no evidentiary basis to support either defence.

On appeal to the Court of King’s Bench of Manitoba, the conviction appeal judge upheld the trial judge’s assessment on self-defence and necessity, specifically holding that the trial judge properly considered whether there was an evidentiary foundation, or “air of reality”, to Mr. Negash’s defences, and dismissed the appeal.

Mr. Negash appealed further to the Court of Appeal of Manitoba, arguing that regardless of whether he was lawfully pulled over, the evidentiary foundation for the defences was present as the interaction with police was racially motivated, that the police illegally arrested him for possession of drugs, and that he was entitled to defend himself when the police smashed his window. The Court of Appeal upheld the conviction appeal decision, finding that the totality of the circumstances did not constitute an evidentiary foundation for Mr. Negash to react in the manner that he did. Simply put, the trial judge was entitled to find, based on the circumstances, that it was not a reasonable course of action for Mr. Negash to flee.

Mr. Negash sought leave to appeal further at the Supreme Court of Canada, which was dismissed on October 3, 2024.

Conclusion

Underlying the offence in Negash was an unlawful arrest for possession of drugs for the purpose of trafficking. While Mr. Negash’s reaction and conduct following the traffic stop was unreasonable, this case is a reminder that officers must ensure they have reasonable and probable grounds to conduct an arrest. Where use of force is necessary, officers must take care to ensure that force is appropriate and to mitigate and diffuse situations where an accused may feel the need to defend themselves.