Police Brutality in Canada :

• When Can the Police Legally Use Physical Force?
• By What Authority Can the Police Legally Use Force?
• What are the Limits on the Amount of Force the Police can Use?
• Police Use of Force Must be Reasonable, Necessary, and Proportionate in the Circumstances
a. Grounds to Arrest are not Grounds to Use Force
b. Grounds to Use Force are Not Grounds to Continue to Use Force
• Can the Police Use Physical Force that Causes Bodily Harm or Death?
• Does that Mean the Police are Required to Use the Least Amount of Force in the Circumstances?
• How Do the Courts Assess whether Police Use of Physical Force was Reasonable in Any Given Circumstance?
• What are My Options if the Police Used Physical Force Against Me?
Remedies Against Police Use of Force: 
a. Constitutional (Charter) Remedies:
b. Professional Sanctions Against the Police Officer
c. Civil lawsuit – Suing the Police Officer
d. Criminal Charges Against the Police

When Can the Police Legally Use Physical Force?

Police in Canada are allowed to use physical force in performing their duties including:

• to complete an arrest
• to prevent an offender from escaping custody
• to prevent the commission of a crime
•  in defence of self (police) or others.

 

By What Authority Can the Police Legally Use Force?

Under s. 25(1) of the Criminal Code of Canada, the police can use physical force to effect a lawful arrest if the police believe on reasonable and probable grounds that such force is necessary.

Most provinces and territories also have legislation relating to provincial offences which are not criminal offences, but which are considered “quasi-criminal” or “sort of like” criminal offences. Provincial offences include for example driving and parking violations, and environmental, noise, zoning, and municipal by-law offences. Under such legislation, law enforcement can also sometimes use physical force if necessary.

This article will use the word “police” to include generally, the RCMP, provincial and territorial police, city police, and at times provincial offence and by-law enforcement officers.

What are the Limits on the Amount of Force the Police can Use?

Police Must Have a Reasonable Belief that Physical Force is Necessary.

The police officer’s grounds for using force must be reasonable, meaning the officer must reasonably believe physical force is necessary.

The officer’s belief can’t simply be his or her own subjective belief, removed from the unique facts of the situation.The officer’s belief needs to be objectively reasonable in that particular situation.

As many widely-publicized incidents have shown, the police, suspects, courts, and the public may differ in their assessment of whether police had an objectively reasonable basis for believing physical force was necessary in a given situation.

Police Use of Force Must be Reasonable, Necessary, and Proportionate in the Circumstances

Section 26 of the Criminal Code of Canada prohibits the police from using excessive force, meaning, force that is in excess depending on the context. Courts, when reviewing an officer’s use of physical force, have used the wording, and the analysis, of whether the force used was “reasonable, necessary, and proportionate.” Physical force that is not reasonable, necessary, or proportionate is considered illegitimate.

Grounds to Arrest are not Grounds to Use Force

The courts have distinguished, and expect the police to distinguish, between a police officer’s reasonable grounds to arrest or apprehend a suspect, and reasonable grounds to use force to achieve the arrest. Said another way, just because the police have reasonable grounds to arrest someone, does not mean they have reasonable grounds to use physical force to carry out the arrest. Whether use of force is necessary to carry out an arrest will depend on the particular facts and circumstances of that particular arrest.

Grounds to Use Force are Not Grounds to Continue to Use Force

Another critical consideration is whether the police can continue to use force in the course of carrying out an arrest. This will depend on the continuing facts and circumstances of each individual arrest.

George Floyd and Eric Garner

This important distinction was highlighted in the police killings of Eric Garner in Florida in July 2014, and George Floyd in Minnesota in May 2020, both of which killings were caught on video. Had those, and other killings, not been caught on video, North America would likely not be discussing these matters with the same call to urgency as we’ve heard in 2020.

While officers may initially have had reasonable grounds to use force to restrain Mr. Eric Garner and Mr. George Floyd (though this is also debatable, and unfortunately no court is yet being asked to decide the matter in Mr. Garner’s killing), certainly the police’s continued use of physical force after Mr. Garner and Mr. Floyd were restrained, and the police’s continued use of force for over many minutes as the men suffocated from lack of oxygen, was patently unreasonable in the circumstances.

In Canada, courts have regularly concluded that even if a police officer initially has reasonable grounds to use force, such as if a suspect physically resists being handcuffed or placed in a police cruiser, the officer may not (and likely does not) have reasonable grounds to continue to use physical force, particularly once the suspect is duly handcuffed, restrained, or otherwise has become compliant. Said another way, once a suspect is handcuffed, restrained or is otherwise compliant, any continued use of police force, such as punching, kicking, sitting on, or tasering a suspect, has regularly been found by Canadian courts to be unreasonable, unnecessary and excessive.

For greater certainly, whether the police are justified in using force is not simply determined once, at the outset of an altercation between police and a suspect. Whether the police’s use and continued use of force is reasonable, necessary, and proportionate, must be continuously assessed and reassessed at all times during the course of the arrest.

 

Can the Police Use Physical Force that Causes Bodily Harm or Death?

No, not legally – not unless the officer reasonably believes that such a level of force is needed to protect himself/herself or to protect another person from grievous bodily harm or death.

Here again, the police officer must have an objectively reasonable basis for believing they or another person is in danger of grievous harm or death, and an objectively reasonable basis for believing such a tremendous level of force is necessary to prevent such harm or death.

For example, there are Canadian cases where an arresting officer perceived a suspect spitting on him to be so grievous and dangerous as to warrant using physical force that broke the suspect’s bones or punctured a lung. Courts have tended to disagree, even where the police know the suspect is positive for communicable diseases (Hepatitis C, HIV). In those cases, force may be necessary to restrain the suspect, but not so much force as to break the suspect’s bones or cause internal damage.

 

Does that Mean the Police are Required to Use the Least Amount of Force in the Circumstances?

No, there is no requirement that the police use only the least amount of force which might successfully achieve their objective. Canadian courts have found that requiring the police use the least force could very well result in unnecessary danger to themselves or others. However, whether the police had other, less physical options, to carry out an arrest may be a factor in weighing the necessity of the force used.

 

How Do the Courts Assess whether Police Use of Physical Force was Reasonable in Any Given Circumstance?

In determining whether a police officer’s use of force was reasonable in the circumstances, the court needs to assess:

1. The nature of the threat or force against the police. For example, a suspect swearing at police is not the same nature of threat as a suspect pointing a gun at police. It may not be reasonable for the police to punch, kick or taser a suspect simply for swearing at them; in contrast, it may be reasonable for the police to shoot a suspect who is threatening to shoot them.

2. The extent to which the threat or force against the police officer was imminent and whether there were other means available to respond to the potential threat against the police. This is not the only or determining factor, but can weigh for or against the necessity of the police’s use of force.

3. The suspect’s and the police’s roles in the incident.

4. Whether any party to the incident used or threatened to use a weapon.

5. The size, age, gender and physical capabilities of the parties to the incident. For example, Canadian courts have been critical of police officers who are larger, heavier, stronger, and specially trained, using significant physical force against smaller, weaker, older (or much younger), or mentally disabled suspects.

6. The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat. For example, where the police are arresting a suspect they have known for years, and whom they have arrested before without incident, this may be a factor in assessing the officer’s subjective belief that force was necessary this time.
6.1  Any history of interaction or communication between the parties to the incident.

7. The nature and proportionality of the person’s response to the use or threat of force.

8. Whether the force was in response to a use or threat of force that the person knew was lawful.

 

What are My Options if the Police Used Physical Force Against Me?

Remedies Against Police Use of Force

1. Constitutional (Charter) Remedies:

Excessive use of force may amount to a violation of your right to life, liberty and security of the person under s. 7 of the Charter of Rights and Freedoms.

If there are criminal proceedings against you, and the court is convinced on evidence that the police use of force during your arrest violated your rights under s. 7 of the Charter, the proceedings against you may be stayed. That said, a stay of proceedings rarely happens. Speak to your criminal defence lawyer about this.

If you are being convicted (found guilty by a court) of the crime for which the police arrested you by force, and if the court is convinced on evidence that the police use of force during your arrest violated your rights under s. 7 of the Charter, your sentence may be reduced. Again, speak to your criminal defence lawyer about this.

2. Professional Sanctions Against the Police Officer

You can file an informal or a formal complaint, requesting that the police officer be reprimanded, face professional disciplinary proceedings, be put on leave with or without pay, or even fired.

An informal complaint might be a phone call to the officer’s supervisor, and might be more appropriate for a lesser situation in which force was used. A formal complaint is typically written and requires a formal written response.

The officer’s supervisor(s), internal investigations unit, or the governing police review board (which will vary depending on the police force), will determine whether any professional sanctions are imposed.

3. Civil lawsuit – Suing the Police Officer

You may wish to sue the police officer in civil court (non-criminal court) seeking financial compensation relating to any damages you suffered including physical, mental, emotional, and financial pain or loss. The family of people killed by police may sue for compensation for their own losses and on behalf of their deceased loved ones.

4. Criminal charges against the police

Like in the American case involving the death of George Floyd, the police in Canada may be arrested and charged with assault, manslaughter (unintentional killing), or even murder.

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