Force

• Author: Craig Forcese/Leah West
• Pages: 670-700

670

CH A PTE R 17

FORCE

In sociological terms, a state i s a compulsory ass ociation that has “been

successful in seeking to monopolize the legitimate use of deadly force

as a means of domination within a territory.”1 Canadian (and inter-

national) law generally accepts th is standard, although caveated with

expectations about how and when a state uses force.

As noted in Chapter 4, a state’s most pressing national security

objective is to protect its territory from ag gression and foreign invasion.

That chapter discusses the rules on when states may use force in inter-

national relations (jus ad bellum). The most common justif‌ication for

the lawful use of force in inter national law is self-defence, while the UN

Security Council may authorize use of force in response to threats and

breaches to internationa l peace and security. In this spirit, the 2004

national securit y policy noted that Canada may deploy its military

assets “to protect against direct threats to international pe ace and sec-

ur it y.”2 Likew ise, the 2017 defence policy listed among the leading core

missions of the Can adian Armed Forces (CAF) detecting, deterring,

and defending against thre ats to and attacks on Canada or its all ies.3

1 Max Weber, “Politics as a Vocation” (1918), printed in HH Ger th & C Wright

Mills (Translate d and edited), From Max Weber: Essays in Sociology (New York:

Oxford Univers ity Press, 1946).

2 Canada, Securing an Ope n Society: Canada’s National Securit y Policy (Ottawa:

Privy Coun cil Oce 2004) at 6.

3 Canada, Min ister of National Defence, “Strong, S ecure, Engaged: Canada’s

Defence Policy” (2017) at 17, online (pdf): htt p://dgpaapp. forces.gc.ca /en/

canada-defence-policy/docs/canada-defence-policy-report.pdf.

Force 671

Use of force is not, however, exclusively an international event.

Within Canad a, law enforcement ocers especially m ay use a dierent,

non-military sort of force to, e.g., deal with civil unre st or in self-de-

fence or defence of others. Police are the f‌irst responders most often

involved in the domestic use of force. However, the CAF’s core missions

include providing “assista nce to civil authorities and law enforcement,

including counter-terrorism, in support of national security.”4 The mil-

itary may al so be involved, therefore, in law enforcement-related uses

of force.

Our focus in this c hapter is on the standards that govern force used

to defeat a security thre at in Canada or abroad. Here, we focus on both

international and domestic legal rules, and we also examine the use of

force in both domestic and international operations. It is sometimes

not clear how some of the international rules we describe apply in Can-

adian law, especially if m ilitary force were to be employed during an

armed conf‌lict in Can ada. We f‌lag those points of potential discon-

nect. We begin with a brief dis cussion of force used by law enforcement

before focusing in detail on use of force by the Can adian Armed Forces.

PART I: FORCE BY LAW ENFORCEMENT

The Canadian state may u se force — including deadly force. However,

legal standards l imit how and when the state may use force. State actors

are not above this law, and unlawful force triggers criminal and civil

law culpability. The Criminal Code lists severa l instances in which

peace ocers and others may use physical force lawfully. We sum-

marize t hese situations in Table 17.1. For instance, the Criminal Code

permits force where exercised reasonably (that is, not excessively) by

anyone in defence of persons or property. Any person also has a li mited

justif‌ication for using force to prevent the commission of an oence.

Peace ocers have supplemental justif‌ication to use force to complete

an arrest. More generally, everyone authorized to admin ister or enforce

the law may use as much force as is necessary for that purpose, so long

as they act on reasonable grounds. Here, dead ly force is only avail-

able where the person has a reasonable belief that it is necessary for

self-preservation or preser vation of another under the person’s protec-

tion from death or grievous bodily h arm.5

4 Ibid.

5 Criminal Code, RSC 1985, c C-46, s 25 [Criminal Code].