R. v. Harper (1982), 40 N.R. 255 (SCC)

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R. v. Harper

Indexed As: R. v. Harper

Supreme Court of Canada

Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Lamer, JJ.

January 26, 1982.


The accused police officer was convicted of assault causing bodily harm during a scuffle with a drunken youth, whom he was attempting to arrest. The accused’s appeal was dismissed by the British Columbia Court of Appeal. The accused appealed.

The Supreme Court of Canada, Ritchie, J., dissenting, allowed the appeal and ordered a new trial.

Criminal Law – Topic 4957

Appeals – Indictable offences – New trials – Grounds – Misapprehension of evidence – A trial judge convicted a police officer of assault causing bodily harm during a scuffle with a drunken youth, whom he was attempting to arrest, after expressly excluding from consideration the evidence of four witnesses – Although the four appeared to have observed the whole scuffle, the trial judge excluded their evidence because they did not observe the moments when the officer alleged to have struck the youth – The Supreme Court of Canada ordered a new trial, because the trial judge erroneously excluded the evidence of the four witnesses.

Cases Noticed:

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271, consd. [para. 5].

Ungaro v. The King, [1950] S.C.R. 430, consd. [para. 5].

Gauthier v. The King, [1931] S.C.R. 416, consd. [para. 19].

R. v. Warner, [1960] S.C.R. 144, consd. [para. 26].

Clarke v. Edinburgh and District Tramways Co. Ltd., [1919] S.C. (H.L.) 35, consd. [para. 27].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 25(1) [para. 13]; sect. 618(1)(b) [para. 15].


D. Owen-Flood and Mel Hunt, for the appellant;

W.G. Burke-Robertson, Q.C., for the respondent.

This case was heard on May 21, 1981, at Ottawa, Ontario, before MARTLAND, RITCHIE, DICKSON, BEETZ, ESTEY, McINTYRE and LAMER, JJ., of the Supreme Court of Canada.

On January 26, 1982, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

ESTEY, J. – see paragraphs 1 to 14;

RITCHIE, J., dissenting – see paragraphs 15 to 28.



R. v. Harper

(1982), 40 N.R. 255 (SCC)

Supreme Court of Canada
Reading Time:
25 minutes
Beetz, Dickson, Estey, Lamer, Martland, McIntyre, Ritchie 

: I have had the opportunity of reading the judgment herein of my colleague, Ritchie, J., and for reasons which I shall now advance I must, with all respect, come to the opposite conclusion; that is, I would allow the appeal and direct a new trial. Because in my view a new trial should be the result of this appeal I will confine my observations to the two grounds which, in my respectful view, direct this disposition. Firstly, the learned trial judge failed entirely to take into account all the evidence which bore on the time period which the trial court found to be vital in this proceeding, and secondly, the proceedings at trial and on appeal have been completed without any reference to s. 25 of the Criminal Code, which deals with the protection afforded by law of a peace officer such as the accused when acting “on reasonable and probable grounds” providing that in so doing such a person uses “as much force as is necessary”.

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