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.

 

 

Section 25 – The Use of Necessary Force In Law Enforcement Part One: Episode 30 of the Ideablawg Podcasts on the Criminal Code of Canada

As a result of the release of the Iacobucci Report on the Toronto Police Service’s response to people in crisis precipitated partly by the Sammy Yatim incident and the recent Michael Brown incident in Ferguson,  never before has the issue of necessary use of force in law enforcement been so prominent in the public forum. Although much of the present media focus has been around body worn cameras for police to monitor and record police practice relating to the use of force, the Iacobucci Report actually goes further and recommends a “zero death” policy, meaning “no death of the subject, no death of the officer involved or of any member of the public.” Whether or not that is possible is a debate for another day but for our purposes, we need to face the reality that force can be used and is authorized under section 25 of the Criminal Code.

We should first note the section descriptor – “Protection of Persons Acting Under Authority.” The section therefore is not a “use of force” section as we tend to describe it but a section focused on protection of those administering or enforcing the law. The protection afforded by the section precludes attaching criminal liability to the authorized person’s actions. Also note that the section covers all “persons” who are acting under authority and not merely the police. Thus, private citizens benefit from this protection as well. In fact, let’s look at the first part of s.25(1) as it lists the “persons” so protected as follows:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

 (b) as a peace officer or public officer,

 (c) in aid of a peace officer or public officer, or

              (d) by virtue of his office,

 

As is with most sections in the Code, the section is both narrow and broad scope. It is narrow as the persons protected must be acting under authority or as required by law. It is broad as the act can be “anything.” Furthermore, the person so authorized, as already mentioned, may be a private citizen or a law enforcement officer as per the definition of “peace officer” and “public officer” under the s.2 definitions. The section also includes those persons aiding law enforcement and those individuals acting “by virtue of his office,” meaning a person who is acting in a position of a public nature. Now, lets look at the complete subsection 1:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

                  (b) as a peace officer or public officer,

                  (c) in aid of a peace officer or public officer, or

                  (d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

 

 

Thus, the protection against imposing criminal liability is limited and only protects the actor if he or she “acts on reasonable grounds.” If the person does act on reasonable grounds then he or she is “justified” in his authorized actions and “in using as much force as is necessary” for effecting that purpose.  This section outlines a common law defence of justification. I have discussed justifications in previous blogs and podcasts but I will provide a refresher. Justifications (and excuses) are defences, which are available after the essential elements of a crime, both the prohibited act and the criminal intention, have been proven. Thus, these defences are a concession to human frailty and a recognition that people are, well “human,” and may act contrary to the law in special circumstances. These special circumstances usually involve exigent circumstances whereby the person has no choice but to act in a manner inconsistent with the law. In the case of justifications, which are defences of the person and property, the offender, by raising the defence, is challenging the “wrongfulness” of the act. In other words, the act is a crime in name only as the circumstances require that the offender be absolved of any criminal responsibility. Thus, the conduct is not wrong as the offender is justified in using force. Of course, flowing from this argument is the requirement in every justification that the force applied be no more than necessary to repel the perceived harm. This brings us full circle to this section as a “use of force” section and the emphasis on whether or not the force was “excessive” in the circumstances.

It is useful to compare the wording of subsection (1) to the old defence of the person sections. I say, old, as the previous sections 34 to 42 were repealed and replaced by the new sections 34 and 35. In the old section 34, which provided for self-defence against an uprovoked assault where death or grievous bodily harm is not intended, an accused was justified in using force that is “no more than is necessary” to defend himself. As you can appreciate, self defence for a non-authorized person is restricted and the admonishment is to minimize the use of force to what is only required. In contrast section 25 is permissive as the authorized administrator of the law is permitted to use as much force as is required to fulfill his duty. The new section 34 does not use the same language but instead requires that the act be “reasonable in the circumstances.”  The “nature and proportionality” of that response, under the new section, is only one factor in determining the reasonableness of the act in the circumstances of the case. In contrast, section 25 only offers a list of factors in determining the reasonableness of the authorized person’s actions, where the force is “intended or likely to cause death or grievous bodily harm.”

Another similar section, which protects persons in authority, is section 43 concerning the correction of a child. In that section, a schoolteacher, a parent or a person standing in place of a parent is justified in using force to correct a child if the force “does not exceed what is necessary under the circumstances.” Again, this section appears to restrict as oppose to permit. This section does not contain a list of factors in considering the necessity of the actions.

The history of the section also sheds some light on the protection afforded by the section. Originally, the precursor to section 25 covered a number of sections. For example the present s. 25 not only applies to an arrest but also refers to the use of force in executing a warrant, in incarcerating a sentenced offender and in preventing an escape from a penitentiary. In fact, historically, these scenarios were part of the use of force protection but were found in separate sections. For example, in the original 1892 Code under Part II “Matters of Justifications or Excuse,” arguably similar subject matter is covered in the multiple sections from 15 to 44, which comprise over half of the sections found under that Part. There were some changes by the 1905 Code but major changes, as in the compression of the bulk of these sections (essentially sections 15 to 37 from the 1892 version), did not come until the numerous amendments in the 1950s, which resulted in major changes to the 1953-54 Code. It is in this version that the various sections were combined and re-enacted as section 25.

How does the present iteration compare with the 1950s version? The first part of the present section, under (1) to (3), is substantially identical to the version used half a century ago. In other words, no changes have been made to the essential elements of this legal protection. However, significant changes were made to the latter part of the section under subsections (4) and (5) as a result of the 1994 amendments to the Code. Those changes brought in the list of “factors” to assist in the determination of the justifiability of using force “ that is intended or is likely to cause death or grievous bodily harm to a person to be arrested.” In the next podcast we will look at these changes more closely as well as the general issue of excessive use of force under the section.