 |
| John L. Hill |
The trouble started earlier that evening. Off-duty Belleville police constable Paul Fyke was shopping at Lowe’s when he overheard staff discussing concerns about a group of three shoppers suspected of shoplifting. They observed a man in a white hat stealing an energy drink. Const. Fyke identified himself as a police officer and offered assistance.
Staff indicated the suspects. Fyke followed them around the store and determined they were acting suspiciously. The three suspects went outside. When a truck, driven by one of the suspects, rapidly exited through a separate entrance, Fyke’s suspicions grew. Fyke called another officer, Jeffrey Smith, who was also shopping at the store, to pursue them. They requested backup.
The truck stopped at the Taco Bell on North Front Street. Inside, Fyke and Smith arrested two of the suspects,
Fahmi Ramdani: ISTOCKPHOTO.COM
Fyke saw Smith struggling from outside and entered the restaurant to assist his partner. The two forced Baptiste to the floor. Baptiste claimed that he had been choked, had a fractured rib and a broken finger. On May 27, 2021, Joseph Martino, director of the Special Investigations Unit (SIU), found reasonable grounds to lay criminal charges of assault causing bodily harm against the officers in connection with the arrest. Martino wrote, "Following the arrest, the man was transported to hospital where he was diagnosed with serious injuries."
At the conclusion of a Superior Court trial of the two city police officers charged with assault causing bodily harm, Justice Patrick Hurley acquitted both officers, but he convicted Const. Smith on a lesser charge of common assault (R. v. Fyke, 2024 ONSC 169).
The Crown appealed. The Ontario Court of Appeal decision was released on Aug. 29, 2025 (R. v. Fyke, 2025 ONCA 602).
The Appeal Court quickly dealt with the Crown’s argument that the police officers used excessive force and should have been convicted. Fyke and Smith had been acquitted using a s. 25(1) Criminal Code defence, which provides that officers can use only as much force as necessary, as long as they acted on reasonable grounds. In bringing this appeal, if there is a legitimate basis for an excessive force defence, the onus is on the Crown to disprove it. The lawfulness of each officer’s conduct must be considered separately (Cluett v. The Queen, [1985] 2 S.C.R. 216).
Without reasonable and probable grounds, Baptiste’s arrest was unlawful. Smith could not use a s. 25(1) defence. However, Fyke could reasonably believe he witnessed Baptiste resisting arrest and entered the restaurant to assist his partner. As set out in R. v. Fyfe, 2023 ONCA 715, it is the officer’s subjective perception that matters.
The Crown’s position was that Smith arrested Baptiste based on information obtained from Fyke, which was insufficient to justify the arrest. There was no reason to treat Fyke and Smith differently. However, the focus should not be on the officer’s subjective perception, but on what a reasonable person in the officer's position would have perceived. The trial judge in this case was therefore required to consider “the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer” (R. v. Canary, 2018 ONCA 304, 361).
In conducting this analysis, the Court of Appeal reasoned that the hypothetical reasonable officer would not have jumped to the conclusion that Smith was making an unlawful arrest, nor would that officer have the luxury of reflecting on the situation before assisting Smith.
Although Justice Hurley found Fyke to have acted lawfully, the judge didn’t need to go that far. The Crown had the burden of proving beyond a reasonable doubt that Fyke acted unlawfully. It did not satisfy that burden. As a result, the Crown’s appeal of Fyke’s acquittal was dismissed.
It would appear to be a victory in court for the police. However, on Dec. 19, 2023, the Belleville Intelligencer reported that Mario Baptiste Jr. had launched a civil lawsuit alleging injuries connected to the incident against the constables, the Police Services Board, and the former police chief, Ron Gignac. He is seeking $550,000 in damages. No date has been set for that civil case.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.