Police Officers & Excessive Force (Part 1)

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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, leadersinlaw.ca (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.

By |October 5th, 2018|Categories: Stuart O'Connell Criminal Blog|Comments Off on Police Officers & Excessive Force (Part 1)

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Stuart O'Connell
Stuart is Lead Counsel at O’Connell Law Group - and works in association with the Firm.
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