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Injured by the Police – What is Excessive Force?

The civil unrest in the US continues in the wake of public anger and backlash over the murder of George Floyd due to unreasonable police force in kneeling on his neck for several minutes.

From a legal standpoint, it is anticipated that the police will rely on a defence known as “qualified immunity” which protects police officers from civil claims for injury resulting from police force.

In Canada, the use of force by the police must occur only within the parameters of the law (federal and provincial) and organizational policies. Police officers are entitled to use force in the execution of their duties if they act on reasonable grounds in doing what was required or authorized and the force used is necessary for that purpose. Section 25 of the Criminal Code protects police officers and provides them with immunity from lawsuits brought by people who have been injured due to excessive force.

Where there is an injury during the arrest, the first consideration is whether the police officer had reasonable grounds to arrest. The next consideration will be whether the use of force by the police officer was reasonable. Answers to these questions will depend heavily on the circumstances.

Joseph v. Meier 2020 BCSC 778 is a recent case dealing with the liability (fault) of a police officer for injury caused by excessive force during an attempted arrest.

In this case, the injured claimant was injured when she was improperly detained and arrested by an RCMP officer for theft. The police officer was called to a store by the manager who suspected that the injured claimant had shoplifted. When he arrived, the injured claimant was making her purchases. As she left the store, the police officer told her that he wanted to search her bag, she refused to stop or provide any information to him. She repeatedly told him that she had done nothing wrong and that she did not need to speak to him. The police officer called by radio for his partner to attend for backup. Meanwhile, he placed the injured claimant in handcuffs. She resisted and he decided to take her to the ground. While on the ground, she continued to resist and they struggled. He eventually searched her belongings and found no stolen merchandise and she was released. She was injured in the struggle.

The trial judge reviewed Section 25 of the Criminal Code and determined that the police officer did not have reasonable grounds to arrest the injured claimant and, therefore, this law did not provide him with immunity from this lawsuit. It was determined that while he had a suspicion that the injured claimant had committed theft, there were no reasonable grounds to arrest her as mere suspicion is not considered reasonable grounds according to the law.

The trial judge also considered whether the police officer used necessary force in that he used no more force than necessary. It was found that he did not use necessary force. Relevant factors included the following: the injured claimant was 61 years-old and walked with a walker; there were other options available instead of handcuffing her and struggling with her which led to the injuries such as waiting for his partner to arrive so that force would not have been necessary.

The trial judge found that the police officer was liable to the injured claimant and damages were awarded for pain and suffering ($50,000.00) and for charter damages ($5,000.00).

Tags: Police Officer Negligence, standard of care of a police officer

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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