The law of force in arrest and control

Malhotra's body-worn camera recorded the arrest of Riley Dunn from the moment the car doors opened. Desjardins plays the first ninety seconds for the class without sound, then again with sound. In the silent version, students see an officer step between two men, a third person crossing his arms, an officer taking hold of his arm, a hard pull, two officers and the man going to the ground, a third officer arriving, and then everyone sitting up. With sound, they hear Malhotra's voice the whole time: 'Stop. Step back. You're under arrest for assaulting him. Turn around for me. You can walk with me or we'll hold your arms. Is there anything I can say? Okay, we're holding your arms. Stop pulling. Stop kicking and we'll help you up. Okay, sitting you up now. Breathe. You're okay.'

'Every use of force you make will be judged by someone who was not there,' Desjardins tells the class. 'They will watch the video, read your notes, hear from the person you arrested, and ask one question: was it justified? This lesson is about how the law answers that question.'

The legal framework

Section 25(1) of the Criminal Code protects a peace officer who is required or authorized by law to do anything in the administration or enforcement of the law, and who acts on reasonable grounds, in using as much force as is necessary for that purpose. Section 25(3) sets a higher threshold for force intended or likely to cause death or grievous bodily harm: it is justified only if the officer believes on reasonable grounds that it is necessary for self-preservation or the preservation of anyone under their protection from death or grievous bodily harm. Section 25(4) deals with flight in limited circumstances, and section 26 makes anyone who uses excessive force criminally responsible for the excess. The same principles apply under section 25 to private persons, such as loss prevention officers, who are authorized to arrest.

The Supreme Court of Canada set out how courts apply section 25 in R. v. Nasogaluak in 2010. Police may use only as much force as is necessary in the circumstances, and the force must be proportionate, necessary and reasonable. At the same time, the Court said officers are not expected to measure the force they use with exactitude, because they work in dynamic and dangerous situations, and their actions should not be judged against a standard of perfection. Courts look at the whole situation as it appeared to the officer at the time.

Desjardins summarizes what the two systems share. Force must be connected to a lawful purpose. It must be necessary, meaning lesser options would not reasonably work. It must be proportionate to the threat and the resistance. It must be reasonable when the whole situation is considered from the officer's point of view at the time. And it must stop, or ease, when the reason for it ends. 'None of these tests asks whether the officer was angry or whether the person deserved it,' he says. 'The law looks at the facts and the purpose, not at how anyone felt.'

Applying the law to Riley Dunn

Haddad walks the class through the Dunn arrest the way she would review a use-of-force report. First, was there a lawful purpose? Yes: the officers had seen Dunn swing at Ferraro and had reasonable grounds to arrest him for assault, and they needed to stop the assault and take him into custody. Second, were lesser options tried? Yes: Malhotra asked, explained, offered options and asked a confirming question before taking hold of Dunn's arm. Third, was the force proportionate? Dunn was actively resisting and had just tried to hit someone, so holding his arms was a low level of force proportionate to that behaviour. When he pulled away hard, the officers took him to the ground in the controlled way they are trained to, which is a higher level of force, but one connected directly to stopping his escape and preventing him from hitting anyone else.

Fourth, did the force end when the reason ended? The body-worn camera shows Dunn was on the ground for about 40 seconds. During that time he kicked twice. Once he stopped kicking and was handcuffed, Malhotra told him he would be sat up, and the officers sat him up within a few seconds. They did not keep any weight on him once he was restrained. 'That last part is what I look at most closely,' Haddad says. 'A lot of serious injuries and deaths in custody happen after the person has stopped resisting, because officers stay on top of them out of habit or adrenaline. Getting a person up and breathing as soon as they are under control is not only good practice. It is a legal duty.'

The timeline shows what Haddad wants every officer to notice: the officers spent almost fifty seconds talking before using any force, the time on the ground was under a minute, and the person was sitting up seven seconds after the handcuffs were on. Those numbers will be in the use-of-force report and in any review.

Force by private persons

Loss prevention officers, security guards and ordinary citizens sometimes use force in making an arrest. Section 25 covers them when they are authorized to arrest, and courts have held that the force must be reasonable in the circumstances, as in R. v. Asante-Mensah in 2003, where the Supreme Court of Canada held that an airport inspector making an arrest under Ontario's trespass law could use reasonable force to do so. Police who take over from a private arrestor should ask what force was used and look for injuries. Callum Price told Reyes he had not touched Whitcomb at all; she had walked back into the store with him. Reyes noted it, and noted that Whitcomb agreed.

Duty to intervene and to report

Officers have a duty not only to use force lawfully themselves but also to act when they see another officer using force that is clearly excessive. Canadian services' policies and training increasingly set out a duty to intervene, and an officer who stands by while another assaults a prisoner may face discipline and, in some circumstances, criminal liability as a party. Desjardins calls this the hardest skill in the course. 'It is easy to say you will intervene. It is hard to put your hand on a senior colleague's shoulder and say “that's enough” in the middle of a struggle. Practise the words now, so they are there when you need them.'

Ontario's regulation on use of force and weapons requires officers to submit a use-of-force report in listed situations, such as when they draw or discharge a firearm, use a weapon other than a firearm on a person, or use physical force on a person that results in an injury requiring medical attention, and other provinces have similar rules. Many services require reports for any force beyond routine handcuffing. Because Dunn was taken to the ground and later needed medical attention for his head, Malhotra and Reyes both completed reports before going off shift. Haddad reviewed the reports and the video and wrote that the force was justified and ended promptly.

Officer-created jeopardy

A recurring question in force cases is whether officers created the danger they then responded to, for example by rushing into a situation that could have been slowed down. Canadian courts consider the whole sequence of events in assessing whether force was necessary and reasonable, so an officer's earlier choices can be part of the analysis. For officers, the practical lesson is the one from the previous lesson: plan the approach, use time and distance where possible, and communicate before acting. Those choices reduce the chance that force will be needed and make any force that is needed easier to justify.

Choosing a response and reassessing

Use-of-force models and training programs give officers a way to think through a response under pressure. The officer safety course introduced a decision cycle: gather information, assess the situation and risk, consider the authority and policy, identify options, act and review, and go around again as the situation changes. Canada's National Use of Force Framework is drawn as a circle with the situation at its centre, to show that officers continually reassess and that there is no fixed sequence of steps. The models do not tell an officer what to do. They help officers explain why they did what they did, and they reinforce that a response chosen in one second may be wrong a second later.

Officers have a range of options, from presence and communication through physical control, intermediate weapons and, at the extreme, lethal force. The weapons and their use are covered in other courses. For arrests, the most important options are often the least dramatic: waiting for another officer, creating distance, letting a person calm down, or deciding not to make the arrest now and getting a warrant later. Malhotra tells the class that if Riley Dunn had stopped swinging and simply walked away down Dock Street, the right choice would probably have been to follow at a distance, wait for car 9 and talk to him again, rather than tackling a drunk man on an icy sidewalk. 'He changed that choice by trying to hit Ferraro,' Malhotra says. 'Not by being rude to me.'

Haddad adds that the officers' size, number, training and fatigue also matter. Two officers can often control a resisting person with less force than one, because they can each control an arm without anyone striking or going to the ground. That is one reason officers are trained to wait for backup when the situation allows, and one reason Coutu's arrival ninety seconds after the takedown made it easier to finish the handcuffing gently.