Episode 33 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 26 - Criminal Responsibility for Excess Force

We have already discussed sections, which protect those authorized persons when administering and enforcing the law. Section 26 presents the converse situation when those so authorized step over the line and employ excessive force. In those circumstances the authorized person is no longer protected and is criminally responsible.

The section reads as follows:

Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

Except for slight grammatical changes, this section is as it appears in section 58 of the 1892 Code. Although the section clearly criminalizes the use of excess force, the section does not describe the degree with which the force must be excessive. In other words, although excessive force is prohibited exactly what constitutes such force is not outlined. It is therefore case law, which must delineate between the force authorized and the force prohibited. However, as indicated by the section, the excessiveness of the force shall be determined “according to the nature and quality of the act.” Thus, the trial judge determining an issue of excess force must be guided generally by the circumstances of the case and specifically by the character and attributes of the act of force itself.  

As an aside, it is interesting to note that the phrase “nature and quality of the act” is used elsewhere in the Code as it relates to someone suffering from a mental disorder under section 16. The phrase was also used in the old iterations of rape in the Criminal Code in circumscribing when fraud vitiated consent, which was when the consent was obtained “by false and fraudulent misrepresentations as to the nature and quality of the act.” Although the actual phrase is no longer referred to under the sections for assault or sexual assault, the phrase is still used by the courts in discussing when fraud vitiates consent pursuant to s.265(3)(c). Even so, the phrase does still appear under s.159(3)(b)(i) of the Criminal Code which outlines when fraud vitiates consent in an anal intercourse offence. It should however be noted that although this section still appears in the Criminal Code, the Court of Appeal for Ontario has found the section to be of no force and effect pursuant to s.15 of the Charter. We will discuss the possible reasons for why this section is therefore still "on the books" this when we arrive at this specific section, which will happen, but will be much further down this podcast road.

But returning to s. 26, we need to ask what does the “nature and quality of the act” mean as it relates to s.26? First, the court will consider whether the decision by the authorized person to use force under the various sections protecting those who are justified in using force, such as sections 25, 25.1 and 27 to 32, is reasonable in light of the degree of force used and the circumstances surrounding the use of it. The assessment is therefore an objective one and does not consider what is going on in the mind of this particular person at the time of the events but what a reasonable authorized person aught to have done in the circumstances.

The following are some of the factors, the court might consider in assessing the reasonableness of the force used where the force is used to effect an arrest. The court may consider the nature and seriousness of the offence for which the arrest is being made. The basis for the arrest and the ensuing reasonable grounds as well as the legality of the arrest itself may be considered. Another factor may involve the reasons for detaining the person to be arrested. A further consideration is whether or not the force was required for protection or for the protection of others. The likelihood of escape and the possibility force was needed to ensure the capture of the person is another factor. Also considered may be the likelihood of the continuation of the offence if force is not used. The physical attributes of the arrestee may be a consideration. Certainly use of force training and policing standards or policies will also be a factor in determining if the force used was excessive. Included in that assessment, the trial judge may refer to escalation or de-escalation techniques as well as the likelihood that the arrestee would respond to the authorized person’s authority. Another possible consideration might be the necessity of arresting the person in the circumstances and whether reasonably there was another time and place, which would have produced a less violent result. This list is just some of the circumstances that may be considered by a trial judge. It must also be remembered that s.26 does work in tandem with those other sections authorizing force and therefore both sections are in issue and may provide direction. For example, as discussed previously, the inquiry differs if the force is intended or likely to cause death or grievous bodily harm.

It should be remembered that s. 26 not only applies to the police or peace officers but to anyone who is authorized by law to use force. This can include a private or civilian person who is not regularly employed to administer or enforce the law but is acting as an authorized person at the time in question. A person effecting a “citizen’s arrest” for example would fall under both sections 25 and 26. Another class of individuals subject to s. 26, which we will discuss later, is schoolteachers, parents or persons standing in the place of a parent who are authorized to apply force to a child who is in need of correction pursuant to s. 43 of the Criminal Code. Surgeons may also be subject to the excessive force provision if they do not perform an operation with all reasonable care and skill as required under s. 45.

The issue of excessive force is highly complex, fact driven and based on the interpretation of legal authorities. Often, the court will hear expert evidence on the reasonable use of force and the acceptable practices, policies and training in the area. In the end, however, it is the principles of proportionality, reasonableness, and necessity, which will determine whether or not the appropriate force was used in the circumstances.






Section 25 of the Criminal Code Part II: Episode 31 of the Ideablawg Podcasts on the Criminal Code of Canada

In the previous episode, I introduced section 25 of the Criminal Code as a protective measure for those persons enforcing or administering the law and those persons assisting in such activities. Under subsection (1), the section permits the use of force and justifies it if the authorized person acts on “reasonable grounds” and the authorized person uses no more force than is necessary to affect his purpose. Thus, when an authorized person steps outside this reasonable and necessary protection, the force would be considered excessive. However, this justification is qualified under subsection (3) when the force used is “intended or likely to cause death or grievous bodily harm.”

Although, subsection (3) discusses the scenario when the authorized person is not protected under s. 25, in actuality, the subsection establishes when an authorized person would be justified in using, for the want of a better term, “deadly” force. Such force is justified if the authorized person “believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.” However, subsection (3) adds a qualifier to subsection (1), where the force is intended to cause death or grievous bodily harm. In those heightened circumstances not only must the force be reasonable and necessary for the enforcement and administration of the law but it must also be used in the context of a reasonable belief on the part of the authorized person that using such force was necessary to protect himself or others under his protection from death or grievous bodily harm. This qualifier is itself subject to (4) and (5). Thus, under subsection (4) such force is justified where the authorized person is arresting someone in circumstances outlined under the subsection. Further, such force is justified against an inmate who is escaping from the penitentiary if the authorized person believes on reasonable grounds that any of the inmates pose a threat of death or grievous bodily harm and the escape cannot be reasonably prevented by less violent means.

There is a large amount of case law on whether the authorized person falls outside of this section and therefore the force is excessive and not justified. The courts have tended to interpret this section generously and to the benefit of the authorized person using the force. For instance, the court recognizes that in the determination of whether or not the force used was reasonable and necessary, the court must not assess the situation through the “lens of hindsight” but must take into account the immediacy of the decision in light of the heightened emotional and stressful circumstances typically surrounding the event. However, the issue of excessive force is a nebulous one driven by factual considerations. Interestingly, though the court is cautious not to be  “a Monday morning quarterback,” many of these cases involve expert evidence not only on appropriate use of force training but also on the ultimate issue as to whether the force used in the case was in fact excessive. By elevating these cases to almost a scientific interpretation of events, the admonishment not to view the cases through the “lens of hindsight” seems to obscure rather than elucidate. A case-by –case determination, applying the relevant legal principles, seems like a more judicious approach.

I don’t intend to go through the case law on this issue in this blog but I would like to point out how the use of force as authorized under this section has impacted areas both outside of criminal law and in criminal law but in a non-traditional basis. The issue of use of force has greatly impacted tort law and civil litigation against police officer and police services. Some of these cases relate, not just to individual officers but also to the concept of use of force in the tactical decisions made by the police. Thus, in the Alberta Court of Appeal case of Webster v. Wasylyshen from 2007, the court considered whether or not the use of the tactical team in the search of the plaintiffs’ home amounted to excessive force. The Court, in that case, found the use of the team was not an excessive use of force “given the need for public protection in the circumstances known to the police.” Excessive use of force by the police is also an issue, which tangentially finds relevance in certain Charter cases where a violation of Charter rights requires an exclusion of evidence under s. 24(2) as the officers’ excessive use of force shows bad faith on the part of the police resulting in the administration of justice being brought into disrepute. Such an argument was accepted in the dissenting decision of the Supreme Court of Canada 2010 Cornell case.  Further, excessive use of force has been used as a mitigating factor on sentence, where an offender is being sentenced for offences but in which the officers were found to be using excessive force.

Although some form of section 25 has been in the Criminal Code since its inception, the section has continued to be tested by the courts in many differing areas of law. The issues raised under this section will no doubt give rise to further advancements in the test to be used in determining excessive use of force and the circumstances in which the court will make such a finding as the world moves into the digital age and the image finds prominence in the courtroom setting. Instead of “dueling” use of force experts the courts will be faced with “dueling” videotapes emanating from citizen cell phones and officers body worn cameras. These new evidentiary tools will, I suggest, push the evidentiary limits of the law in this area and will, I suspect, provide a whole new area of case law in this area.