CASE and COMMENT
Beim v. Goyer1
Robert Leclerc *
Beim v. Goyer was a decision of the Supreme Court on an action
in damages taken by the Appellant Ralph Beim (through his tutor)
against Respondent and the City of Montreal, for injuries he sustained
as a result of a gunshot fired by Respondent, a police officer of the
City of Montreal. Officers M~nard and Goyer saw Appellant driving
an automobile, which they knew to be stolen, in the wrong direction
on a one-way street. They pursued Appellant, signalling him to stop;
young Beim ignored this direction, accelerated and sped in flight
from the policemen. He soon abandoned the car and took to a nearby
field. Constable M6nard was the first to leave the police car and
gave chase on foot; he called’out to Beim and in urging him to stop,
fired four warning shots from his revolver. Out of breath, M~nard
gave up pursuit and Respondent Goyer ‘left the car to continue in
the attempts to apprehend Appellant. As he ran across the snow-
covered field, Goyer fired two warning shots and, since the fugitive
had given no indication that he would stop running, prepared to fire
a third shot into the air. Unfortunately, Officer Goyer fell, striking
his right elbow on the ground. A shot was discharged’accidentally
which struck Appellant in the back, injuring him seriously.
At trial Charbonneau, J., in accordance with the verdict of the
jury, dismissed the claim against the City but maintained the action
against Goyer to the extent of some $32,000. In the Court of Queen’s
Bench 2 this judgment was affirmed regarding the City but reversed
with respect to the claim against Constable Goyer. The Supreme
Court, by a 6-3 majority, reversed the latter judgment (the only
one on appeal), restoring the decision of first instance.
This recent holding of the Supreme Court raises some most in-
teresting questions as to the liability of a police officer for acts
done in the exercise of his duty to attempt to apprehend someone
1 [19651 S.C.R. 638.
* Of the Junior Board of Editors.
2 Gordon v. Goyer [1964] B.R. 558.
No. 3]
BEIM v GOYER
whom he reasonably believes to be committing a criminal offence. It
is proposed that two of these questions be discussed, the standard of
conduct and the nature of the duty of care which is demanded of the
police officer in such circumstances, and the significance of the
distinction between an accidental and an intentional wound which a
policeman may inflict on the individual whom he so pursues.
On the first question (the conduct and care criterion) Abbott, J.,
in speaking also for the Chief Justice and Cartwright and Hall, J.J.,
found that there was fault and negligence on the part of Constable
Goyer. In allowing the appeal he adopted primarily the words used
at trial, to the effect that Respondent’s negligence consisted in
“carrying a revolver with finger on the trigger while running over
rough and stony ground, after having previously fallen a number
of times.” Mr. Justice Ritchie, while concurring in this opinion, gave
further reasons for allowing the appeal, which included among others
his application of the foreseeability test set out in the Pliestmn 3
case by the Court of Appeal of Ontario. There, Laidlaw, J. A.,
dissenting, stated that:
In order to find that he [Officer Priestman] was negligent I think it
would be necessary to find that he ought reasonably to have foreseen that
his arm might be jolted at the instant he fired, and that the injuries that
resulted were such as a reasonable man would contemplate.
Thus, this rule, which was approved by the Supreme Court, meant
that a police officer who injured someone while performing the
duties for which he was employed, would be excused from liability as
long as he could not reasonably be expected to have foreseen the cause
of the injurious act (the jolting of his arm) and, whether he foresaw
this or not, he would have to have reasonably foreseen the particular
damages which resulted.
Although Laidlaw, J. A. felt that Priestman had passed the fore-
seeability test, Ritchie, J. concluded that Constable Goyer had not. As
he had already fallen twice on the snowy field, he should have been
aware of the likelihood of -a third fall.
Assuming that the foreseeability test is proper and relevant to
the examination of the standard of conduct and the duty of care
demanded of the police officer, it is difficult to appreciate why Mr.
Justice Ritchie could come to the conclusion that he did on the basis
of the rule as framed by Laidlaw, J. A. in Priestm cn. In the latter
case, one of two police officers in a patrol car, after having fired a
warning shot into the air, of which the driver of the pursued stolen
3 [1958] D.L.R. 7.-at.p. 15; rev. by [1959] S.C.R. 615.
McGILL LAW JOURNAL
[Vol. 13
car took no notice, sought to shoot at one of the rear tires. At that
instant, the patrol car struck a bump in the road and the officer missed
his mark. Instead, he hit the rear window and the bullet ricocheted
and struck the driver of the car, who then lost control of the vehicle
which mounted the sidewalk and killed two pedestrians. The Supreme
Court by a majority
(3-2) exonerated Officer Priestman from
liability to the estates of the deceased third parties. In view of these
circumstances, would it not seem more consistent with Priestman if
the Supreme Court had dismissed the appeal in Beim v. Goyer? As
Martland, J. points out in his dissenting opinion (at p. 646, S.C.R.),
the shot in Priestman was fired “deliberately… on a city street in
a populated area, and set in motion events which resulted in the
deaths of two innocent people”. In Beim v. Goyer, there was no chance
of injury to a third party from the relationship between the police
officer and the fugitive Beim. Furthermore, there was no intention
to arrest the movement of the fugitive, either directly (by shooting
at him) or indirectly (by shooting in a way analogous to the conduct
and purpose which governed the officer’s action in Priestman). On
the contrary, the intent was not to use force of -any description against
the accused, but merely to fire a warning shot into the air. One such
warning shot unfortunately hit Beim –
an occurrence that would
hardly seem likely considering that the bullet discharged from the
gun at the time of the third fall could have followed many lines
other than the one leading to Respondent’s spine.
In regard to the distinction between the accidental and the in-
tentional wound which a police officer may inflict while attempting
to apprehend someone whom he has reason to believe to be committing
a criminal offence, it was the opinion of Spence, J. that because of
this the only issue before the Supreme Court was that of negligence.
In his view the accidental character of the discharging of the shot
precluded discussion of the application or effect of S. 25 (4) 4 of the
Cqiminal Code. As there was no intent, there could be no question of
measuring the degree of force that was permissible in the circum-
stances. Thus Justice Spence was content, as were the other judges
of the majority opinion, to proceed directly to the “pure question of
negligence”. Abbott, J. described the issue as “…. whether the re-
4 S. 25 (4) states that “A peace officer who is proceeding lawfully to arrest,
with or without warrant, any person for an offence for which that person may
be arrested without warrant, and everyone lawfully assisting the peace officer,
is justified, if the person to be arrested takes flight to avoid arrest, in using
as much force as is necessary to prevent the escape by flight, unless the escape
can be prevented by reasonable means in a less violent manner.”
No. 3]
BEIM v GOYER
spondent was at fault, in failing to exercise proper care in the use of
firearms when pursuing the appellant” (p. 642) and concluded that
Constable Goyer was at fault for the reason that he carried a revolver
with his finger on the trigger “while running over rough and stony
ground after having fallen a number of times.”
It is submitted that while Respondent might not have been able
to invoke s. 25 (4) of the Criminal Code in his defence (for the reason
set out by Spence, J.)
it would have been more consistent with
Priestman, and the foreseeability tests approved by the Supreme
Court in that case, to approach the question of negligence by first
examining closely the relationship between the two parties before
the Supreme Court in 1965. At trial, the jury answered that the
discharge of the revolver occurred through improper handling by the
Respondent, and to elaborate on this finding gave the reason cited
by Mr. Justice Abbott in the preceding paragraph. On this matter
the trial judge charged the jury as follows:
… in my opinion if the revolver was discharged accidentally it would be
through the fault and negligence of Defendant Goyer. He had tripped twice
before. He was running with a cocked revolver.
In the light of this view, might one conclude that if the officer
had only had his finger on the trigger when he was about to fire
the third warning shot he would have been excused from liability?
If the fault existed in that Goyer was “carrying a revolver with
finger on the trigger…” then perhaps the constable would have been
a free man had he been careful to put his finger on the trigger only
when he was about to fire the first, second or third warning shot.
Unfortunately, Beim v. Goyer does not provide us with an answer
to such questions, as the relationship between Plaintiff and Defendant
was never fully explored at trial. One is left wondering exactly what
a police officer may do in attempting to apprehend someone whom
he has reason to believe to be committing or to have committed a
criminal act. It would seem that, as Martland, J. suggests in his
dissenting opinion (at pp. 650-651) the real issue in this case was
not met, grasped and determined at trial:
The issue which the jury should have been asked to determine was whether
the conduct of the respondent, during his pursuit of the appellant, was
negligent, and, in determining that issue, they should have been instructed
that such conduct had to be considered in light of the fact that the appellant
was seeking to escape arrest, and that the respondent was a peace officer,
with the rights defined in S. 25(4) of the Criminal Code. They should have
been asked to determine whether, under those circumstances, it was negligent
for the respondent to carry his revolver in his hand, and whether it was
negligent for him to fire a warning shot in the course of pursuit without
coming to a halt.
520
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Rather than explore the context of the events, the trial judge
found that there was fault on Respondent’s part because of something
antecedent to the actual time and circumstances in which the wound
was inflicted. There was no real consideration of the fact that
Respondent was not just any other citizen but, on the contrary, a
peace officer, in pursuit of someone seeking to escape arrest, and
who in so doing is justified “in using as much force as is necessary
to prevent the escape by flight, unless the escape can be prevented
by reasonable means in a less violent manner.” In this context, Re-
spondent carried a revolver and fired a number of warning shots,
both with the object of performing his legal duty to arrest. It was
left undecided as to whether Respondent could proceed in this fashion.
Instead of being able to appreciate the nature of the duty of care
owed by Respondent to young Beim in the light of his duty to make
an arrest, the circumstances were reduced by the trial judge to a
pure conideration of conduct accidental to the true question as to
what action the policeman was allowed to take in this particular
situation.
