The law of force

At the curb on Harbour Street, Malhotra caught Pelley's right arm and Reyes his left, about a step before he reached the road. Pelley pulled hard, twisted and kicked at Reyes. Brody ran in from the bus shelter. In the struggle, all four went down onto the grass beside the sidewalk, with Pelley face down. Malhotra and Reyes controlled his arms, Brody put his knee across Pelley's upper back, and after about twenty seconds Pelley was handcuffed. Desjardins writes three questions on the board. 'Were they allowed to grab him at all? Was taking him to the ground lawful? And was the knee on his back lawful, and for how long?' He turns to the class. 'Today we answer the first two. The third needs lesson 9 as well.'

Where the authority comes from

In Canada, the starting point is section 25(1) of the Criminal Code. It provides that everyone who is required or authorized by law to do anything in the administration or enforcement of the law, including a peace officer, is, if they act on reasonable grounds, justified in doing what they are required or authorized to do and in using as much force as is necessary for that purpose. Section 25 does not create police powers. It protects officers who use necessary force while carrying out a power that comes from somewhere else, such as an arrest power in the Criminal Code, a search power, or an apprehension power under a provincial Mental Health Act.

Three conditions follow from the wording. First, the officer must be doing something the law requires or authorizes. Force used for a purpose the law does not authorize, such as punishing someone or making them show respect, has no protection at all. Second, the officer must act on reasonable grounds, which means the belief that the power applied and that the force was needed must be one a reasonable person in the officer's position could hold. Third, the force must be no more than necessary for the lawful purpose.

Necessity and proportionality

The Supreme Court of Canada explained section 25 in R. v. Nasogaluak in 2010. Officers in Alberta had punched and broken the ribs of a man who resisted arrest after a car chase, and then failed to tell anyone about the injury. Justice LeBel, for the Court, held that police actions should not be judged against a standard of perfection, that officers in dangerous and fast-moving situations cannot be expected to measure the force they use with exactitude, and that allowances must be made for the demands of the situation. But the force must still be proportional, necessary and reasonable. The Court held that the force in that case was excessive, and that excessive force by police can breach section 7 of the Charter and justify a reduced sentence for the person on whom it was used.

In practice, necessity asks whether a less intrusive option would reasonably have achieved the lawful purpose in the time available. Proportionality asks whether the force matched the seriousness of the situation, including the threat the person posed and the harm the force could cause. Reasonableness looks at the whole situation as the officer reasonably perceived it at the time. The three questions overlap, and courts look at them together.

Looking at the whole situation

Canadian courts and oversight bodies look at the whole encounter, including what the officers did before the force was used. An officer who unnecessarily created the danger, for example by rushing an armed person in crisis, may find that the force that followed is judged less favourably. The Special Investigations Unit in Ontario routinely asks whether officers could have used time, distance and communication before force, and coroner's juries ask the same question.

Force that may cause death or grievous harm

Section 25(3) of the Criminal Code sets a higher threshold for force that is intended or likely to cause death or grievous bodily harm. Such force is justified only if the officer believes on reasonable grounds that it is necessary for the self-preservation of the officer or the preservation of anyone under the officer's protection from death or grievous bodily harm. Section 25(4) allows such force to prevent the escape of a person being arrested only in narrow circumstances, including that the officer believes on reasonable grounds that the force is necessary to protect the officer or anyone else from imminent or future death or grievous bodily harm, and that the escape cannot be prevented by reasonable means in a less violent manner. The firearms course (LES-207) covers lethal force in detail.

Some force that is not usually thought of as lethal can still cause death or grievous harm, depending on how it is used. Neck restraints, strikes to the head, and weight on the back or neck of a person who is lying face down all carry this risk. That is one reason the knee on Pelley's back is a harder legal question than the grab at the curb, and lesson 9 covers the medical reasons.

Excessive force and other provisions

Section 26 of the Criminal Code provides that everyone who is authorized by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess. An officer who uses necessary force and then continues after the need has passed may be justified for the first part and criminally responsible for the second. Section 27 allows the use of as much force as is reasonably necessary to prevent the commission of an offence for which the offender could be arrested without warrant and that would be likely to cause immediate and serious injury to the person or property of anyone. The general self-defence provision in section 34, revised in 2013, also applies to officers, and requires that the act be reasonable in the circumstances.

Honest mistakes

Officers often act on incomplete information, and sometimes they are wrong. The law allows for reasonable mistakes. If an officer reasonably believed that a person was reaching for a weapon, the force is judged on that belief, even if it later turns out the person was reaching for a phone. But the belief must be reasonable, not just honestly held. A belief based on assumptions about a person's race, appearance or neighbourhood, or on a failure to look at what was plainly visible, is not reasonable. And the officer's training counts: what is reasonable for a trained officer is judged against what that training should have taught them to notice.

Three kinds of accountability

A single use of force can lead to three separate processes, each with its own standard. A criminal prosecution, for example for assault or manslaughter, requires proof beyond a reasonable doubt that the force was not justified. A civil lawsuit for battery, negligence or a Charter breach requires proof on a balance of probabilities, and the officer and the police service can be ordered to pay damages. Discipline under provincial police legislation, such as Ontario's Community Safety and Policing Act, asks whether the officer breached the code of conduct or service policy, and can lead to penalties up to dismissal. An officer can be acquitted in one process and found responsible in another, because the questions and standards differ.

Limits set by policy and statute on specific techniques

Beyond the general rules in the Criminal Code, provinces and services set limits on particular techniques and weapons. Many Canadian services restrict neck restraints, such as the carotid control technique, to situations where lethal force would be justified, or have removed them from training altogether, and several reviewed or restricted them after 2020. Provincial regulations set training and requalification requirements; in Ontario, officers must successfully complete use-of-force training every year to carry weapons. These rules do not change the Criminal Code, but an officer who breaks them faces discipline, and a court may treat the policy as evidence of what a reasonable officer would have done.

Applying the law at the curb

At the curb, the officers had authority under section 17 of the Mental Health Act, as lesson 4 explained, and the risk of Pelley walking into traffic was immediate. A verbal warning had been given and ignored. A less intrusive option, such as continuing to talk, would not have stopped him in the second or two before he reached the road. Taking hold of his arms was the least force that could work, and it was necessary for the lawful purpose of protecting him. When he pulled away and kicked, using enough force to control him, including bringing him to the ground, was likely reasonable, because the alternative was to let go next to moving traffic.

The analysis changes once Pelley was handcuffed. After that, he could no longer reach the road, he was not striking anyone, and the purpose of the force had largely been achieved. Any force after that point had to be justified by a new need, such as keeping him from kicking while the officers stood him up. Brody's knee stayed on Pelley's upper back for about forty seconds after the handcuffs were on, while Pelley said twice that he could not breathe. That is the part of the call the review focused on, and it is why the law cannot be separated from the medical risks in lesson 9 and the duty to intervene in lesson 10.

Desjardins tells the class that the law is applied the same way in the officer's report. A good report does not say 'reasonable force was used to effect the apprehension'. It says what the authority was, what the person did, what each officer did in response, why lesser options would not have worked at that moment and when each kind of force stopped. Lesson 11 covers report writing; the habit of thinking in phases starts here.