This week on Legally Speaking with Michael Mulligan:
An RCMP officer from Nanaimo is on trial for assault causing bodily harm after he is alleged to have punched a detainee in the eye causing a fractured orbital bone.
The complaint in the case was arrested on her 19th birthday after her friends called the police for help because she was so drunk. The RCMP officer that attended was unable to find a safe place for the woman due to her level of intoxication, so he arrested her for being in a state of intoxication in a public place.
The RCMP officer brought the woman back to the police station to book her into cells for the night so that she could sober up. As the woman was physically resisting, the RCMP officer sought assistance from a second RCMP officer.
While walking down a hallway towards a cell, the drunk woman attempted to resist the two RCMP officers and swung her foot out towards the officer that arrested her. The officer responded by taking the woman down to the ground, on her back. The drunk woman then punched the RCMP officer in the upper body or face and, after several more swings or punches, the RCMP officer punched the woman back, once, causing a fractured orbital bone.
The physical interaction was all captured on video.
In a criminal trial, the Crown goes first calling evidence. This is because the accused person is presumed to be innocent and is not required to prove they didn’t commit an offence.
In the trial of the RCMP officer, after the Crown finished calling evidence, a “no evidence” application was made. In cases with a jury, this can kind of application can also be called an application for a directed verdict.
When this kind of application is made, the judge hearing the case must determine if a theoretical jury could properly convict the accused. If they could not the judge would allow the application and acquit the accused without requiring them to decide if they wish to testify or call evidence.
In the case discussed, the RCMP officer accused was relying on both general self-defence provisions as well as section 25 of the Criminal Code, which provides a special defence for police officers. Section 25 permits police officers to use force that is likely to cause death or grievous bodily harm to a person who has been arrested if they believe it’s necessary to prevent death or grievous bodily harm to themselves or others. The section also permits police officers to use as much force as is necessary for the administration or enforcement of the law if they act on reasonable grounds.
Because, when a no-evidence application is made, a judge must assume that all inferences that could be drawn from the evidence would be favourable to the Crown, the application was unsuccessful in the case discussed. The RCMP office on trial will, therefore, needs to decide if he wishes to testify or call other evidence.
Also, on the show, a 91-year-old father of two adult children tried, unsuccessfully, to undo a transfer of his home into joint tenancy with one of the children.
When a property is put in joint tenancy, if one of the joint tenants dies, the other becomes the owner of the entire property, with no reference to what a will might say.
The adult child refused to respect the father’s wishes to undo the transfer.
Finally, on the show, a judge has concluded that an application for child support for a child who is more than 19 years old must be brought by the child and not the parent on behalf of the child. Child support, after a child reaches 19 years of age, can continue if the child still requires support because of disability, continued education or similar circumstances.
Follow this link for links to the cases discussed.