[56] Murder becomes first degree murder when the victim is a police officer "acting in the course of his duties": s. 231(4)(a) of the Criminal Code. The appellant does not suggest that Cst. Seewald was not in the course of his duties when he arrived at the residence in response to the 911 call. That is clearly correct in law and on the evidence in this case: R. v. Godoy, 1999 CanLII 709 (S.C.C.), [1999] 1 S.C.R. 311, [1998] S.C.J. No. 85 (QL), at para. 11. The appellant submits that when Cst. Seewald stepped into the apartment without the appellant's permission, or at least when Cst. Seewald used pepper spray, he had stepped beyond the scope of his authority: R. v. Petri 2003 MBCA 1 (CanLII), (2003), 171 C.C.C. (3d) 553, [2003] M.J. No. 1 (QL), 2003 MBCA 1 at para. 28 . In sum, the appellant suggests that Cst. Seewald was no longer "acting in the course" of his duties when he was shot. The appellant's argument would interpret the concept of "acting in the course" of duty in a manner which would incorporate elements of "execution" of duty by applying a requirement of "lawful" to "course".
[57] This argument fails for two reasons. Firstly, in my view, is the lack of any "air of reality" to the suggestion that Cst. Seewald could be found to be acting in excess of the force he was entitled to use under s. 25 of the Code at the time he was shot. Even if Cst. Seewald used pepper spray on the appellant, there is no reality to the suggestion that Cst. Seewald was shot when he was using the pepper spray, despite Ettinger's evidence. Clearly the pepper spray was in Cst. Seewald's pocket by the time that he was shot. If the jury found that Cst. Seewald was shot by the appellant with murderous intent within the meaning of s. 229(a) of the Criminal Code, then nothing surrounding that finding could raise any doubt that Cst. Seewald would not have been acting in the course of his duty at that time. If the jury found that the gun unintentionally went off during a struggle between the two men, the jury would have returned a verdict of manslaughter and the official status of Cst. Seewald would have been irrelevant.
[58] It follows that the trial judge would have been entitled to refuse to instruct the jury on this element of s. 231(4) of the Criminal Code in the manner proposed for by the appellant. To make this element of 'lost status' relevant, the jury would have to reason illogically. To find Cst. Seewald was not acting in the course of duty when shot would require the jury to find that Cst. Seewald was either: (a) continuously using unlawfully excessive force from the time he arrived up to the shooting; or (b) no longer able - after using excessive force - to resume his position as being in the course of the duty that he was in when he first arrived at the residence. Neither notion of a continuous or irremediable excess of force was realistic on the evidence under a scenario found by the jury wherein Cst. Seewald was shot at some distance with murderous intent using a shotgun that the appellant had to procure from a closet to use. Instructions on a concept of the allegedly shifting status of Cst. Seewald would only have been confusing to the jury.
[59] The appellant's contentions here also fail on the law. The meaning given to "course" of duties in R. v. Prevost reflex, (1988), 42 C.C.C. (3d) 314 at p. 317, [1988] O.J. No. 707 (QL) was temporal:
In my view "acting in the course of his duties" is a wide term. It would obviously include any activity covered under the narrower term "engaged in the execution of his duty" but it would also include any activity which is related to the performance of a duty or to the ability of the officer to perform his duty. Thus, refueling the cruiser, having lunch, attending to one's toilet necessities, receiving medical attention, or similar activities during a tour of duty would all fall within this definition. [Emphasis added]
[60] The appellant's counsel would narrow this to covering only that which an officer might lawfully do during his shift. He would draw the adverb "lawfully" from the language in R. v. Waterfield, [1963] 3 All E.R. 659 (Eng.) which discussed the lawfulness of the exercise of police authority with binding effect on citizens dealing with the police. Waterfield was adopted in R. v. Dedman, 1985 CanLII 41 (S.C.C.), [1985] 2 S.C.R. 2, [1985] S.C.J. No. 45 (QL) at paras. 20 and 24 (dissent) and paras. 57 to 58 (majority). In Dedman, at para. 58, LeDain J. opined that police officers "only act lawfully if they act in the exercise of authority which is either conferred by statute or derived as a matter of common law from their duties". He added that:
[58] ..... The ambit of their authority, as distinct from their liability, is not to be determined by the limits of criminal or civil responsibility. Police action may be unlawful for lack of statutory or common law authority although neither criminal nor tortious. The issue in the present case may be likened to one of vires. The contention is that the allegedly unauthorized and hence unlawful nature of the signal to stop affected the validity of the subsequent demand for a sample of breath. [Emphasis added]
[61] The analysis of lawfulness in this part of Dedman addressed whether a legal authority binding upon the motorist could be deployed by the officer if the officer lacked statutory or common law basis for exercising that authority. In other words, the crucial question was not whether the officer was in the "course" of his duty, but whether the demand authority he purported to exercise – with legal effects on the motorist for non-compliance with that demand – was founded in the law.
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