B. Preliminary Issues
| Author | Steve Coughlan - Glen Luther |
| Profession | Professor, Schulich School of Law, Dalhousie University - Associate Professor, College of Law, Saskatchewan |
| Pages | 24-74 |
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The Criminal Code contains, under the heading "Protection of Persons Administering and Enforcing the Law," a number of supporting provisions relevant to the exercise of powers under the Code.56Strictly
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speaking, the sections are, for the most part, phrased as "justifications" rather than powers, and litigation over their meaning frequently occurs in the context of civil litigation.57They are therefore framed as though they are conceptually similar to, for example, the self-defence provisions in the Code. Nonetheless, their greater significance is the extent to which they authorize police and others to act in ways which would not otherwise be permitted, and so it is reasonable to think of them as a sort of police power.
That said, not all the provisions are limited to police: section 25, for instance, justifying the use of force, applies as well to private persons who are required or authorized by law to do anything in the administration or enforcement of the law. And, although the provisions are relevant to the powers of arrest and detention which are the subject of this book, they are not limited to that context. The rules about warrants apply equally to search warrants, and whether the amount of force that was used in executing a search was reasonable can also be questioned.58The supporting provisions will be discussed under three headings: use of force, rules regarding warrants, and breaches of the peace.
The use of force is governed by a combination of several provisions: sections 25, 26, and 27.59
Sections 25 and 26 have to do with the use of force in the execution of legal authority, and must be read in conjunction with one another.60
Section 25 states that anyone who is required or authorized by law to do anything in the administration or enforcement of the law (whether a private person, a peace officer, or a public officer, someone aiding one of those officers, or a person acting by virtue of some other office) "is, if he acts on reasonable grounds, justified in doing what he is required
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or authorized to do and in using as much force as is necessary for that purpose."61This must be seen in light of section 26, which states that "[e]very 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."62Note that the statutory justification attaches to anyone authorized to act, not merely to the police. This is consistent with the position at common law, which was that "the right to use reasonable force attaches at common law to the institution of an arrest, not to the status of the individual making the arrest."63Accordingly, private citizens might also be justified in using force.
The more significant question is what is actually authorized under section 25. The first thing to note is that the section has not been read to be nearly as broad as it might seem to be at first glance. It is not a broad-based grant of power for a person to do "what he is required or authorized to do": that is, it is not a grant of ancillary powers beyond those explicitly enumerated elsewhere. As noted above, police only have the powers they are explicitly given by statute or common law: section 25 is not a source of further powers. The section does not provide a defence to a police officer who generally acts reasonably and in good faith.64Rather, it applies to govern the use of force when the person involved has already been authorized to act in some other way. As the British Columbia Court of Appeal has observed, "section 25 does not confer extra powers on the police, but serves as a shield from criminal or civil liability."65Even more specifically, the section has been read as limited to the use of force in the specific context of conducting an arrest. The Supreme Court of Canada is often taken to have concluded in Cluett66 that the section means that "police officers are not entitled to use force
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unless an arrest is warranted and properly made."67The decision in Cluett is not entirely clear on that point, however, and might also be read as rejecting the use of force only because the officer in that case was acting without any legal authority: without legal authority because there was no power to detain short of an arrest. The Court’s decision in Mann has since created a limited power of investigative detention.68
Whether the justification in section 25 would apply to a police officer using that power, rather than the power to arrest, remains unsettled and indeed largely unaddressed.69The likeliest result is that the section would apply.
Lower courts, for example, have laid down rules regarding the use of section 25 which presume a broader application than merely using force to effect an arrest. The Alberta Court of Appeal has held :
Section 25(1) contains three branches. In order to access the protection of the section, a police officer must prove that he or she:
(i) was required or authorized by law to perform an action in the administration or enforcement of the law;
(ii) acted on reasonable grounds in performing that action; and
(iii) did not use unnecessary force.70Other guidelines have also been laid down. It has been held that actions taken under section 25 should not be assessed through hindsight, but rather must be judged based on the situation as it appeared to the officer at the time. As with self-defence, police officers are not expected
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to measure the precise amount of force the situation requires and will not fall outside the protection of section 25(1) for failing to use the least amount of force actually necessary: in this regard, it is sometimes said that the officer is not required to weigh to nicety the force required, which is the same standard used in section 34(1) self-defence claims.71
Rather, allowance must be made for an officer misjudging the degree of force required, given the exigencies of the moment.72Depending on the facts of the case, quite considerable force can be found to be justified.73
On the other hand, the section is intended only to protect reasonable decisions: negligence precludes the application of section 25.74There are further aspects to section 25, beyond the general authorization of reasonable force in subsection (1). Section 25(2) provides that a person executing process or carrying out a sentence in good faith is justified in doing so even if it later transpires that the process or sentence was defective or in excess of jurisdiction. The thrust of this section was explained by the Supreme Court in Finta:
The purpose of s. 25(2) is to provide legal protection to a police officer, who, acting in good faith and on a reasonable belief that his or her actions are justified by law, later finds out that those actions were not authorized because the law was found to be defective.
Section 25 is akin to the defence of mistake of fact. Unless, the law is manifestly illegal, the police officer must obey and implement that law. Police officers cannot be expected to undertake a comprehensive legal analysis of every order or law that they are charged with enforcing before taking action. Therefore, if it turns out that they have followed an illegal order they may plead the peace officer de-fence just as the military officer may properly put forward the defence of obedience to superior orders under certain limited conditions. The qualification is that the military officer must act in good faith and must have reasonable grounds for believing that the actions taken were justified. An officer acting pursuant to a manifestly unlawful
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order or law would not be able to defend his or her actions on the grounds they were justified under s. 25 of the Criminal Code.75Section 25(2) is not meant to provide a defence in the case of a mistake of law. If a peace officer is simply mistaken about what powers she has, section 25(2) is of no assistance. Thus, for example, a police officer who forces entry into a dwelling to effect an arrest in circumstances where no power to do so existed cannot rely on section 25(2).76The distinction between a mistake of fact and one of law can be unclear, of course, in this context as in others.77Three subsections deal with the use of potentially deadly force, attaching restrictions to when it is available. Section 25(3) limits the circumstances in which section 25(1) could authorize deadly force, and so is available to anyone who falls within that former section. Section 25(4) is a modern version of the "fleeing felon" rule, available to peace officers who are attempting to arrest a person who flees, and section 25(5) deals with the use of deadly force by peace officers in the case of a penitentiary escape.
There are some common features to the subsections. All three, it should be noted, refer to force "that is intended or is likely to cause death or grievous bodily harm": to refer to them as the "deadly force" provisions is a convenient shorthand, but in fact they apply whether death has actually occurred or not. It has been held, for example, that section 25(3) is applicable in assessing whether the use of a chokehold was acceptable.78Note conversely that whether an injury has actually been suffered does not settle whether the limits in these subsections apply. A peace officer might use a level of force in making an arrest which in fact results in injury: if that was neither intended nor likely, then the limits in sec-
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tion 25(3) would not be relevant.79In addition, note that, if the officer is justified in using deadly force under one of these provisions, then that justification applies against the world, not...
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