Law360 Canada ( August 27, 2021, 5:27 AM EDT) -- Appeal by the accused from conviction for assault and from sentence of nine months’ imprisonment imposed. The appellant, an off-duty police officer, and his brother caught Miller, a black man, stealing from a truck. Miller fled but was caught by the appellant. A violent struggle ensued during which the appellant was wielding a metal pipe. Miller sustained a permanent eye injury. The trial judge accepted the medical evidence that the eye injury was most likely caused by a punch, and not a strike with a metal pipe. The appellant was charged with aggravated assault. The trial judge acquitted him on this charge because he found that the brothers could have been attempting to execute a lawful arrest and acting in self-defence. Miller and the brothers advanced very different versions of events concerning the incident. The trial judge made extensive findings of credibility and fact. While the trial judge accepted portions of the brothers’ testimony, he rejected significant aspects of their evidence. The trial judge found Miller also presented significant credibility problems. Ultimately, the trial judge did not decide with certainty where the metal pipe came from or who first wielded the pipe. Given the credibility issues with Miller, the trial judge was unable to accept that he never had the pipe in his hands and found it was a reasonable possibility that he wielded the pipe at some point during the initial encounter. The trial judge found that when the appellant struck Miller with the pipe at the front door of a residence that Miller attempted to enter after he had left the altercation, the appellant was neither acting in self-defence nor attempting to effect a lawful arrest. As such, he committed an unlawful assault as the eye injury was not caused by the metal pipe....