Docket

40569

Trevor Ian James Lindsay v. His Majesty the King

(Alberta) (Criminal) (As of Right)

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

Proceedings
Date Proceeding Filed By
(if applicable)
2024-01-02 Transcript received, 49 pages
2023-12-18 Formal judgment sent to the registrar of the court of appeal and all parties
2023-12-18 Judgment on appeal and notice of deposit of judgment sent to all parties
2023-12-14 Judgment on the appeal rendered, Ka Kas Ja Ob Mor, JAMAL J. — We are all of the view that the appeal should be dismissed.

We do not accept the appellant’s submission that the trial judge misinterpreted the concession of defence counsel that if an assault occurred, it was an aggravated assault. The appellant did not raise this as a ground of appeal before the Court of Appeal. The appellant now claims that the trial judge interpreted this concession as meaning that he did not need to decide whether the Crown had proved the elements of aggravated assault. We disagree. Reading the judgment as a whole, the trial judge concluded that the appellant committed aggravated assault when he intentionally struck and threw the person in his custody to the ground. As the majority of the Court of Appeal correctly noted, based on the trial judge’s reasons, “the pathway to conviction is clear and based on the correct application of relevant legal principles” (para. 6). A trial judge is presumed to know the law and is entitled to focus on the live issues at trial. In our view, the trial judge’s reasons are sufficient in law (see R. v. G.F., 2021 SCC 20, at para. 74).





Nor do we accept the appellant’s argument that the trial judge erred in concluding that s. 25(1) of the Criminal Code, R.S.C. 1985, c. C-46, did not provide a defence for the appellant’s use of force against the individual. Section 25(1) “essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances” (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34). The matters raised by the dissenting judge in the Court of Appeal in essence impugn the trial judge’s findings of fact. In our view, the trial judge was entitled to find on the evidence before him that the appellant had no reasonable grounds to strike the person initially, and that his use of force in striking him three more times in the head and then throwing him to the ground was unnecessary and excessive on a proper standard. The trial judge’s findings of fact were amply supported by the record. We see no basis for this Court to intervene.




The appeal is dismissed.

Dismissed
2023-12-14 Hearing of the appeal, 2023-12-14, Ka Kas Ja Ob Mor
2023-12-11 Appellant's condensed book, (Book Form) Trevor Ian James Lindsay
2023-12-11 Respondent's condensed book, (Book Form) His Majesty the King
2023-11-20 Notice of appearance, Alias Sanders will appear before the Court in person and will present oral argument.
Trevor Ian James Lindsay
2023-11-09 Notice of appearance, (Letter Form), Katherine Elizabeth Fraser will appear before the Court. Katherine Elizabeth Fraser will present oral argument., (Printed version due on 2023-11-17) His Majesty the King
2023-06-27 Notice of hearing sent to parties, via email.
2023-06-27 Appeal hearing scheduled, 2023-12-14
2023-06-21 Order on motion to extend time to serve and/or file notice of appeal, by the Registrar (sent to all parties by email)
2023-06-21 Decision on motion to extend time to serve and/or file notice of appeal, Reg,
UPON APPLICATION by the appellant for an order extending the time to serve and file his factum, record and book of authorities to April 27, 2023, in the above matter;

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motion is granted.

Granted
2023-06-21 Submission of motion to extend time to serve and/or file notice of appeal submitted, Reg
2023-06-16 Certificate (on limitations to public access), Form 23A, (Printed version due on 2023-06-23) His Majesty the King
2023-06-16 Respondent's factum, (Book Form), Completed on: 2023-06-21, (Printed version filed on 2023-06-19) His Majesty the King
2023-06-16 Respondent's record, (Book Form), Includes Form 24B
, Completed on: 2023-06-21, (Printed version filed on 2023-06-19)
His Majesty the King
2023-04-28 Certificate (on limitations to public access), 23B (Factum) Trevor Ian James Lindsay
2023-04-27 Certificate of counsel (attesting to record), (Letter Form), (Printed version filed on 2023-04-27) Trevor Ian James Lindsay
2023-04-27 Appellant's record, (Book Form), (3 volumes), Completed on: 2023-05-03, (Printed version filed on 2023-04-27) Trevor Ian James Lindsay
2023-04-27 Motion to extend the time to serve and/or file the notice of appeal, (Book Form), Completed on: 2023-06-16, (Printed version filed on 2023-04-27) Trevor Ian James Lindsay
2023-04-27 Appellant's factum, (Book Form), Completed on: 2023-05-03, (Printed version filed on 2023-04-27) Trevor Ian James Lindsay
2023-01-25 Letter acknowledging receipt of a notice of appeal, FILE OPENED 2023-01-25
2023-01-20 Certificate (on limitations to public access), (Letter Form), 23B, (Printed version due on 2023-01-27) Trevor Ian James Lindsay
2023-01-20 Certificate (on limitations to public access), (Letter Form), 23A, (Printed version due on 2023-01-27) Trevor Ian James Lindsay
2023-01-20 Notice of appeal, (Letter Form), Completed on: 2023-01-20, (Printed version due on 2023-01-27) Trevor Ian James Lindsay