The law of force and less-lethal weapons

Four days after the Bayview Avenue incident, Constable Tomas Ruiz sat down with Sergeant Haddad to go over his use-of-force report. Haddad did not start with the weapon. She started with a blank sheet of paper and asked him to write down, in order, what he knew, what he saw and what he was trying to prevent at the moment he decided to use his conducted energy weapon. 'The law does not care which tool you used first,' she told him. 'It cares about why you used force at all, whether the amount of force matched the threat, and whether you stopped when the reason stopped. The tool comes last.'

In class, Desjardins puts Ruiz's list on the screen with his permission. Ostrowski was holding a broken bottle with a jagged edge. He had ignored repeated requests to put it down over about seven minutes. He was shouting that people were following him. He had stepped toward a woman leaving the laundromat, Hana Bekele, with the bottle raised, and was about four metres from her. Ruiz's purpose was to stop Ostrowski from cutting Bekele before he reached her. 'That list,' Desjardins says, 'is the start of every legal analysis you will ever do about less-lethal force.'

The legal framework

In Canada, the same legal rules apply to less-lethal weapons as to any other use of force. Section 25(1) of the Criminal Code protects a peace officer who is required or authorized by law to do something in the administration or enforcement of the law, who acts on reasonable grounds, and who uses 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. Section 26 makes anyone who uses excessive force criminally responsible for the excess. Section 27 allows the use of 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, which is often the provision that applies when officers act to stop an attack on someone else.

In R. v. Nasogaluak in 2010, the Supreme Court of Canada held that police may use only as much force as is necessary in the circumstances, and that the force must be proportionate, necessary and reasonable. The Court also said officers are not expected to measure force with exactitude, because they work in dynamic and dangerous situations. Civil courts apply similar principles when people sue for injuries, and the Charter's protection of security of the person under section 7 and its protection against cruel and unusual treatment under section 12 have been raised in some cases involving weapons used on people in custody.

How courts see less-lethal weapons

Courts in both countries have rejected the idea that less-lethal weapons are minor force. Canadian courts, inquiries and oversight bodies have treated conducted energy weapons as a significant use of force. The Braidwood Inquiry in British Columbia, set up after Robert Dziekanski died at Vancouver International Airport in October 2007 after RCMP officers used a conducted energy weapon on him several times, recommended in its 2009 report that these weapons should not be used unless the person is causing bodily harm or will imminently cause bodily harm, and no lesser force option would prevent that risk. Its 2010 report on Dziekanski's death found that the officers' use of the weapon was premature and not justified. Those findings have shaped policy across Canada.

The lesson from these cases is the same in both countries: a less-lethal weapon is not justified merely because a person is refusing to do what they are told. It is justified when the person presents a real threat of harm that cannot reasonably be managed with less force. Canadian services' policies, many of them shaped by Braidwood, typically allow conducted energy weapons only for people who are assaultive or presenting a threat of serious harm, not for people who are passively resisting.

Applying the law to Bayview Avenue

Desjardins walks the class through Ruiz's decision. First, a lawful purpose: Ostrowski was about to commit an assault with a weapon on Hana Bekele, and stopping him was a lawful purpose under section 27, as well as a step toward a lawful arrest. Second, necessity: the officers had spent seven minutes asking him to put the bottle down. He was too far away to reach by hand before he could reach Bekele, and any attempt to grab him would have brought officers within reach of the broken glass. Third, proportionality: a person armed with a broken bottle and moving toward someone presents a threat of serious injury. A single cycle from a conducted energy weapon was proportionate to that threat, and was far less than the lethal force that a knife-like weapon might have justified in some circumstances. Fourth, the force ended when the reason ended: Ostrowski fell, dropped the bottle and was handcuffed during the cycle, and Ruiz did not activate the weapon again.

The class debates one point. Amara Okafor asks whether the officers could have done more to keep Bekele away, for example by asking her to go back inside the laundromat earlier. Haddad agrees that it is a fair question, and says it is exactly the kind of earlier decision that courts now look at , because Canadian courts consider the whole sequence of events. 'Bekele came out of a side door they could not see,' she says. 'But in the review, we added a point about assigning one officer to watch for bystanders. That comes up in lesson 12.'

The second case shows why a model like this is useful in training. A man holding onto a signpost and refusing to let go is frustrating, and a conducted energy weapon would end the standoff quickly, but his conduct is passive resistance. The model points the officer back to the options that fit: more time, more officers, communication and, if an arrest is necessary, physical control. Using an intermediate weapon to save time is exactly the pattern that courts and reviews have criticized.

The example is deliberately simple. Real policies describe behaviour more carefully, and every decision depends on all the circumstances, including the officer's size and training, the number of officers, the environment and the person's condition. But the logic is the one courts use: the force option must match the threat. A person who is only passively resisting is not a reason to use a conducted energy weapon, however frustrating the situation is.

Criminal, civil and disciplinary consequences

An officer who uses a less-lethal weapon unlawfully can face three kinds of consequences. Criminal charges are possible when the force is clearly excessive, such as assault or assault with a weapon, and section 26 makes officers criminally responsible for any excess. Civil lawsuits can be brought against the officer and the employer for injuries. And discipline under the provincial police act can lead to penalties up to dismissal. In serious cases, more than one of these can follow the same incident.

For officers, the practical protection is the same as the legal test. Know the purpose, use force only when lesser options will not reasonably work, match the force to the threat, stop when the threat ends, and write it all down accurately and promptly. Haddad tells the class that the officers she has seen get into trouble with less-lethal weapons almost never got there because of one bad second. 'They got there because they used the weapon to make someone comply, rather than to stop a real threat, and then they wrote a report that did not match the video.'

The officer who did not use the weapon

Desjardins asks the class to look at the Bayview Avenue video from Coutu's camera rather than Ruiz's. Coutu also carried a conducted energy weapon that night, and she never drew it. She explains that the two officers had agreed in the first minute who would do what: she would talk, and Ruiz would cover and decide on any weapon. 'If both of us had our weapons out, pointed at a frightened man, he would have been more frightened,' she says. 'And if both of us had fired, we would have doubled the exposure for no reason. One voice, one weapon ready, one plan.'

Haddad adds that the law looks at each officer's force separately. If Coutu had also used her weapon at the same moment, she would have had to justify that second use on its own, and most policies would have made it very difficult to do so. A second simultaneous use would have been judged under section 25 like any other force, and policy in most services says that two officers should not use these weapons on the same person at the same time except in extraordinary circumstances.

Force used to protect someone else

The Bayview Avenue decision was about protecting a third person, Hana Bekele, rather than the officers themselves. Courts in both countries recognize that preventing serious harm to a member of the public is one of the strongest reasons for police force. The same questions still apply: was the threat to the third person real and imminent, would a lesser option have protected them in time, and did the force stop when the threat stopped? Desjardins points out that it would have been a very different case if Bekele had been safely inside the laundromat behind a locked door. 'The threat is what makes the force reasonable,' he says. 'Take away the threat, and the same five seconds becomes excessive.'