Legal authority and the law of force on high-risk calls

On the Monday after the Harbour Pharmacy robbery, Haddad brings the incident report to class and asks the students a question that surprises them. 'When Malhotra and Reyes pulled that car over, with their firearms drawn, what were they doing in law?' Someone suggests they were arresting the driver. 'Not yet,' Haddad says. 'At that point they had a car that matched a description and a plate that a witness had partly seen. The legal answer to my question decides what they could say, what they could do, how long they could hold the people in the car, and when they had to tell them why. Every one of those decisions was made in the first two minutes.'

High-risk calls do not have their own body of law. The same rules that govern any stop, detention, arrest, entry, search or use of force apply, and courts apply them with full force even when the threat is real. What changes is that the officers often act on more limited information, under more pressure and with more force displayed. That makes it more important, not less, that every officer understands the legal basis for each step.

Authority to stop and detain

In Canada, police may detain a person for investigation when they have reasonable grounds to suspect that the person is connected to a particular crime and that detention is reasonably necessary, as the Supreme Court held in R. v. Mann in 2004. A detention must be brief and limited to what is needed. Section 9 of the Charter protects everyone from arbitrary detention, and section 10 requires police on detention to tell the person promptly why they are being detained and, without delay, of their right to retain and instruct counsel. In R. v. Suberu in 2009, the Supreme Court held that 'without delay' means immediately, subject only to concerns for officer or public safety. Police may also arrest without warrant under section 495 of the Criminal Code when they believe on reasonable grounds that a person has committed an indictable offence.

A high-risk vehicle stop usually begins as an investigative detention. On April 10, Malhotra and Reyes had a grey Honda Civic matching the description, with the first three characters of the plate matching what the pharmacist saw, travelling away from the area fourteen minutes after the robbery. Those facts gave reasonable grounds to suspect that the occupants were connected to the robbery. Ordering the occupants out of the car one at a time, with firearms drawn, was a significant intrusion, and courts look closely at whether that degree of force was justified by the risk. Here it was: the robbery involved what looked like a handgun.

Haddad points out that the legal situation can change during the stop. Once the driver was out of the car and Reyes saw a black handgun on the passenger seat, the officers had grounds to arrest him for the robbery. At that moment, the detention became an arrest, and the full rights on arrest applied. 'You do not get to decide the legal label at the end,' she says. 'It changes as the facts change, and your notes need to show when.'

Rights on detention and arrest

Section 10 of the Charter requires officers to tell a detained or arrested person promptly why, and to tell them without delay of the right to counsel. On a high-risk stop, the reasons and the right to counsel may be delayed only for as long as it takes to make the scene safe, and the delay must be justified in the officer's notes. Once the person is secured and the scene is under control, the officer must give the reasons and the right to counsel and help the person contact a lawyer as soon as practicable. Courts have excluded evidence where officers used the safety exception as a general excuse for delay.

On April 10, Reyes told the driver, Jordan Pike, why he was being stopped once he was secured and the second occupant was out of the car, about three minutes after the stop began. Desjardins asks the students whether that delay was reasonable. Most agree that it was: until both occupants were out and the officers knew whether anyone else was in the car, there was a real safety reason to keep the instructions short and focused. He notes that Reyes wrote down the time and the reason for the delay in her notes.

The law of force

Section 25(1) of the Criminal Code protects a peace officer who is required or authorized by law to do something, who acts on reasonable grounds and who uses as much force as is necessary for that purpose. Section 25(3) sets a much higher threshold for force intended or likely to cause death or grievous bodily harm: the officer must believe on reasonable grounds that it is necessary to protect the officer or anyone under the officer's protection from death or grievous bodily harm. Section 25(4) allows lethal force to prevent flight in limited circumstances, only where the person is being arrested for an offence for which they may be arrested without warrant, the flight cannot be prevented by reasonable means in a less violent manner, and the officer believes on reasonable grounds that force is necessary to protect someone from imminent or future death or grievous bodily harm. Section 26 makes officers criminally responsible for any excess.

In R. v. Nasogaluak in 2010, the Supreme Court of Canada held that police force must be proportionate, necessary and reasonable, and that officers are not expected to measure force with exactitude in dynamic and dangerous situations. Courts and the Special Investigations Unit in Ontario look at the whole sequence of events, including the officers' earlier choices. Ontario's Community Safety and Policing Act, 2019, which came into force in April 2024, and its regulations require services to train officers in use of force and to report uses of force to the province.

Pointing a firearm is force

One of the most important legal points for high-risk calls is that pointing a firearm at a person is itself a use of force. It is not a neutral precaution. Courts in both countries treat it as a serious intrusion that must be justified by the circumstances, and many services require officers to report it in the same way as other uses of force. The justification is usually straightforward when there is reliable information that the person is armed and dangerous, but it can be hard to justify when officers have only a vague suspicion, when the people involved are clearly unarmed, or when the firearm stays pointed after the threat is gone.

Canadian services commonly require officers to document drawing or pointing a firearm, and Ontario's use-of-force reporting rules require a report whenever an officer draws a handgun in the presence of a member of the public, points a firearm at a person or discharges a firearm. That reporting allows services and the province to see patterns, such as how often firearms are pointed at people who turn out to be unarmed or uninvolved.

Haddad tells the class that the practical rule is the same in both countries. Point a firearm only when the threat justifies it, lower it when the threat is controlled, and write down why. 'When Pike was face down and handcuffed, and we knew the car was empty, there was no reason for anyone to keep a firearm pointed at him,' she says. 'If you watch our camera footage, you will see the cover officers holster as soon as I say the car is clear. That is not just good tactics. It is the law.'

Force to prevent an offence and to protect others

Section 27 of the Criminal Code allows anyone, including a peace officer, to use as much force as is reasonably necessary to prevent the commission of an offence for which a person could be arrested without warrant and that would be likely to cause immediate and serious injury to a person or property. This section often applies when officers act to protect a hostage, a family member or a bystander. The same principles of necessity and proportionality apply.

Searching after a high-risk stop

Once the occupants were arrested, the officers could search them and the area within their immediate control as an incident of arrest, for the purposes recognized in Cloutier v. Langlois in 1990 and R. v. Caslake in 1998: officer and public safety, preventing escape, and finding and preserving evidence of the offence. The search must be truly incidental to the arrest and carried out in a reasonable way. A search of the car for evidence of the robbery was justified because the arrest was for the robbery and the car was the getaway vehicle. Searching a cellphone found on Pike was a different matter: under R. v. Fearon in 2014, a phone search incident to arrest is allowed only in narrow circumstances, must be tailored to the purpose and must be recorded in detail. The service sought a warrant instead.

A protective search for weapons is narrower than a search for evidence. Before the occupants were arrested, officers could check them and the immediate area for weapons when they had reasonable grounds to believe there was a safety risk, but not search for evidence. Haddad reminds the students that a high-risk call does not widen any of these powers. 'The fact that the call was dangerous explains why we drew our firearms,' she says. 'It does not give us the right to search anything we like afterward.'

Notes that explain the law

Because the legal status of a high-risk call changes quickly, the officers' notes have to show each change and the facts behind it. Good notes record the information the officer had before acting and where it came from, the time and reason for each escalation of force and each reduction, when grounds for arrest arose and what they were, when rights were given and any reason for delay, and what was searched and on what basis. Reyes's notes from April 10 ran to four pages. Desjardins shows them to the class as an example of notes that a court would find easy to follow: short, timed entries in plain language, with each decision tied to a fact.

Each officer is judged separately

On a high-risk call, several officers may use or display force at the same time. The law judges each officer's actions separately. An officer who points a firearm because the officer beside them did, without seeing the threat themselves, may have a weaker justification. Many policies also impose a duty to intervene: an officer who sees another officer using clearly excessive force must act to stop it and must report it. This duty has been widely adopted since 2020 and is part of the national consensus policy in the United States and of many Canadian service policies.