Robert Kenneth Power v. Her Majesty the Queen

(Saskatchewan) (Criminal) (By Leave)




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Criminal law – Defences – Self-defence – Use of force – Is the fact that a police officer acts in accordance with their training relevant to the issue of the objective assessment of the reasonableness of their use of force – What degree of deference should be afforded to a trial judge in his assessment of a videotape of the incident in question when a summary appeal judge is in as good a position to review and assess the videotape as the trial judge – Did the majority of the Court of Appeal err in principle when it said the question was if “it was necessary” for the police officer to use the push-kick, or is the issue whether the officer used as much force as was necessary as set out in section 25(1) of the Criminal Code.

The applicant, Constable Power, is a police officer who push-kicked the complainant in the abdomen in the process of arresting him. The force of the kick bounced the complainant backwards and he hit his head on the cement. Constable Power testified that he kicked Mr. Stonechild to defend himself and he believed Mr. Stonechild was going to hit him. The applicant was convicted of assault causing bodily harm contrary to s. 267(b) of the Criminal Code by the trial judge. The appeal was allowed by the summary conviction appeal judge and an acquittal was entered. The majority of the Court of Appeal granted leave to appeal and restored the conviction. Caldwell J.A., dissenting, would have held that the defence of self-defence was made out on the proper application of the law to the facts as found by the trial judge. He would have ordered an acquittal on the charge of assault causing bodily harm.

Lower Court Rulings

January 24, 2014
Provincial Court of Saskatchewan

35883277, 2014 SKPC 017
Conviction: assault causing bodily harm
October 31, 2014
Court of Queen’s Bench of Saskatchewan

QBG4444 of 2014, 2014 SKQB 356
Appeal allowed
March 7, 2016
Court of Appeal for Saskatchewan

CACR2532, 2016 SKCA 29
Leave to appeal granted; appeal allowed; conviction restored