A Hypothetical Analysis: Would Justin Trudeau Be Guilty of Assault?

Prime Minister Justin Trudeau made national and international headlines for his actions in the House of Commons during the evening of May 18. Frustrated with a delay over a vote to limit debate in relation to a time-sensitive assisted-dying bill, Prime Minister Trudeau crossed the floor of the House of Commons in order to physically grab the Conservative whip, Gord Brown, and direct him past a group of New Democratic Party Members of Parliament, who had been standing in his way. In the process, Mr. Trudeau’s elbow made contact with the chest of Ruth Ellen Brosseau, an NDP MP. Ms Brosseau, who was quite shaken by the incident, temporarily left the House—missing the ensuing vote in the process (according to a thestar.com May 18 news report).

Reaction to the Prime Minister’s behaviour was swift.

Within hours, a statement issued on behalf of Mr. Brown asserted: “What happened is, that as I was trying to start the vote, the prime minister grabbed my arm. I immediately told the prime minister to let go of me—now.” (Posted by the Recorder and Times for May 18).

As a May 20^th CBC News report summarizes: “NDP MP Niki Ashton said that ‘physical violence’ had taken place in the House and that ‘people would call what happened here assault.’ Conservative MP and deputy justice critic Michael Cooper suggested that Trudeau’s physical encounters with two MPs could be defined as ‘criminal assault.’ And Tory MP Mark Warawa tweeted that Trudeau was guilty of ‘physical assault.’”

These are very strongly worded accusations.

So, could Mr. Trudeau’s actions—in relation to his grabbing Mr. Brown and his making physical contact with Ms Brosseau—technically constitute criminal assault?

Section 265(1) of the Criminal Code states:

A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

As mentioned in an earlier article titled “Quotas, Quotas Everywhere…”, there is a relatively low threshold that peace officers need to meet in order to arrest someone: an officer must have a reasonable belief—which, at least in theory, includes both subjective and objective considerations—that an individual has committed an offence. (See section 495 of the Criminal Code.)

It is important to bear in mind that in most provinces in Canada, police officers decide whether to lay criminal charges. Most police officers in this country would likely use their discretion and decline to lay charges in a case identical to this one—with the same available evidence. However, I will assume for the sake of this (hypothetical) Crown decision-making exercise that police have in fact laid assault charges here. (It is also worth noting that video evidence would rarely be available in most situations involving allegations such as these.)

So, for this exercise, we’ll pick up where the Crown Attorney (in most provinces) would first have any involvement in the case—after police have decided to lay criminal charges.

The Crown must constantly reassess each case by asking two questions, as described in the Ontario Crown policy manual.

• The first question is: Is there a reasonable prospect of conviction?
  • According to the Crown policy manual, “The threshold test of ‘reasonable prospect of conviction’ is objective. This standard is higher than a ‘prima facie’ case that merely requires that there is evidence whereby a reasonable jury, properly instructed, could convict. On the other hand, the standard does not require ‘a probability of conviction,’ that is, a conclusion that a conviction is more likely than not.”
  • If the answer to this first question is “no,” the prosecution must be discontinued.
• If the answer to the first question is “yes,” the Crown must move on to the second question: Is it in the public interest to discontinue the prosecution? (The wording of the Ontario policy manual in this respect is somewhat curious.  In other provinces, such as Alberta, the decision to prosecute, as per Alberta’s Justice and Solicitor General, is based on whether it is in the public interest to continue with a prosecution.

Let’s examine the first question—whether there is a reasonable prospect of conviction based on the evidence.

Well, there is video evidence of Mr. Trudeau physically grabbing Mr. Brown for a brief period of time. The audio connected to the video is extremely muffled and impossible to make out. However, Mr. Brown provided a statement to the media indicating that he told Mr. Trudeau at the time to “let go.” Therefore, based on this statement, it seems quite clear that Mr. Brown did not consent to the application of force.

A leading case on point is R v Burden (1981), 25 CR (3d) 283 (BC CA). In this case, the British Columbia Court of Appeal held that “mere touching,” if intentional and not consensual, could indeed constitute assault. At paragraph 19, Justice McFarlane, speaking for a unanimous Court, states: “Having regard to those considerations it is my opinion that when the trial Judge found in the circumstances of this case that the respondent put his hand on the woman’s thigh, as described, he did intentionally apply force to her person within the meaning of Code.” (R v Burden at paragraph 19)

It would seem, technically speaking, as if Mr. Trudeau’s actions could very well meet the legal definition of criminal assault vis-à-vis Mr. Brown.

Additionally, while applying unwanted force to Mr. Brown, Mr. Trudeau’s elbow incidentally made contact with Ms Brosseau’s chest. It is far less clear whether Mr. Trudeau’s contact with Ms Brosseau could technically constitute assault. Although in some instances general intent to apply force can be transferred (for instance, where an individual actually intends to apply force to person X but instead, in the process, applies force to person Y—see R v Deakin (1974), 16 CCC (2d) 1 (MB CA)), this would be an extremely difficult case to make out in the circumstances. It is quite conceivable that different Crown Attorneys could come to different conclusions with respect to whether there is a reasonable likelihood of conviction in relation to an assault on Ms Brosseau. Based on Mr. Trudeau’s comments and in viewing the totality of evidence, I would likely determine that there is no reasonable likelihood of conviction on this particular charge.

Because a hypothetical assault charge against Mr. Trudeau in relation to his grabbing of Mr. Brown would have a reasonable likelihood of conviction (from a strictly legal perspective), it becomes necessary to move on to the second step in the analysis: whether it is in the public interest to proceed with the prosecution.

There are a number of factors to weigh here. For instance, generally, physical assaults in the context of a workplace (especially those committed by people in positions of authority) should be deterred. However, as far as assaults are concerned, this is certainly at the very lowest end of the scale, and the act was committed by someone—without a criminal record—who has been quite remorseful since the incident. (It would be important to consult with Mr. Brown in order to determine his perspective on proceeding to a potential trial.)

I would certainly be inclined to determine that it would be in the public interest to resolve this matter outside the traditional criminal justice system (perhaps by way of a formal apology, peace bond, diversion program (workplace anti-harassment/anti-bullying and/or anger-management training)) rather than continuing with a (hypothetical) prosecution. (In case I was mistaken as to my determination that the assault charge in relation to the contact with Ms Brosseau would not have a reasonable likelihood of conviction, I would apply the same rationale at the public interest evaluation stage as with the charge concerning Mr. Brown.)

This case serves as an excellent reminder of the importance of the use of proper police and Crown discretion.

Police, after all, are responsible (at least in most provinces) for determining whether charges should be laid in any particular situation.

Once charges are laid, it is up to the Crown to determine whether a case should proceed to court. If a Crown Attorney failed to exercise his/her discretion properly in a case such as this and instead decided to continue with the prosecution, on the evidence, a judge would have very little choice but to begrudgingly find Mr. Trudeau guilty of assaulting Mr. Brown. And while the (hypothetical) sentence would no doubt be a discharge (most likely an absolute discharge, but possibly a conditional discharge instead, with a no-contact order for a short period of time), meaning that Mr. Trudeau would not have a criminal record, that would still be ridiculously excessive in the circumstances.

I agree with this comment from Ottawa-based defence lawyer Michael Spratt, cited by CBC News on May 20th: “It would be my hope that any police officer who was looking at this, Crown who was screening it or judge who was adjudicating it would have the good sense to see that it was momentary, on the low end of the spectrum with respect to any force, and that it’s something that shouldn’t be dealt with criminal law.” However, judges would not be able to force the hand of the Crown, as the judicial role is separate and apart from the prosecutorial role. (See R v Anderson, [2014] 2 SCR 167.)

To quote Cicero, “Extreme justice is extreme injustice.”