Police Officers & Excessive Force (Part 1)
Police
officers are entitled to use force in the execution of their duties if they act
on reasonable grounds in doing what they are required or authorized to do and the
force used is necessary for that purpose.
See section 25, Criminal
Code.
The Crown
has the evidentiary burden of establishing that section 25 of the Code
has been met when it relies on the provision to justify the use of force.
The Crown
must therefore prove that the officer:
(i)
was required or authorized by law to perform the action, that the
officer undertook, in the administration or enforcement of the law;
(ii)
acted on reasonable grounds in performing the action; and
(iii)
did not use unnecessary force.
The use
of more force than necessary gives rise to both criminal and civil liability.
Section
26 of the Criminal Code, which is to
be read with section 25, imposes criminal responsibility on those authorized by
law to use force where the force used is excessive.
Was the officer acting in
execution of her/his duty at the time force was used?
The
powers and duties of a peace officer emanate from common law and statute. In
Ontario, these common law duties have been codified in sections 42(1)
and (3) of the Police Services Act.
Examples
of the type of situation in which force may be necessary in the execution of a
police duty include (but are not limited to) apprehending a fleeing suspect,
preventing a continuation of an offence and protecting the safety of members of
the public.
Force Likely to Cause Death
or Grievous Bodily Harm
The Criminal Code has a specific limitation
on the degree of force that can be used. The officer cannot use force that is
intended or likely to cause death or grievous bodily harm unless he believes
that it is necessary for the purpose of preserving himself or anyone under his protection
from death or grievous bodily harm. That limitation is found in s. 25(3) of the
Criminal Code.
The Criminal Code also includes provisions
regarding the use of force in specific circumstances: the suppression of a
riot, force on board an aircraft, and force against an inmate escaping from a
penitentiary, etc.
Grievous
bodily harm is not defined in the Criminal
Code. At common law it means
serious hurt or pain.
R. v.
Bottrell (1981), 1981 CanLII 339 (BC CA), at para. 5.
Necessary Force v.
Excessive Force
In
determining whether the amount of force used by the officer was necessary the
trier of fact must have regard to the circumstances as they existed at the time
the force was used.
Allowance
must be made for the exigencies of the moment.
Officers cannot be expected to measure the force used with
exactitude. It is both unreasonable and
unrealistic to impose an obligation on the police to employ only the least
amount of force which might successfully achieve their objective. To do
so would result in unnecessary danger to themselves and others. Officers are
justified and exempt from liability in these situations if they use no more
force than is necessary, having to regard to their reasonably held assessment
of the circumstances and dangers in which they find themselves.
Chartier
v. Greaves, [2001] OJ 634 (SCJ) para. 64;
R. v.
Nasogaluak, 2010 SCC 6 (CanLII); R. v.
Nasogaluak 2007 ABCA 339 (CanLII).
Stuart O’Connell,
O’Connell Law Group (All rights reserved to author).
CRIMINAL CODE
Protection of Persons
Acting Under Authority
Section
25. Everyone who is required or
authorized by law to do anything in the administration or enforcement of the law...
(b)
as a peace officer …
if he
acts on reasonable grounds, justified in doing what he required or authorized
to do and in using as much force as is necessary for that purpose.
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