According to the Sections 7 and 8 of the Charter of Rights and Freedoms contained within Part I of Canada’s 1982 Constitution Act:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right to be secure against unreasonable search or seizure.
Under Section 2(c) of the Charter, everyone has the fundamental freedom of peaceful assembly.
According to Section 24(1) of the Charter:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||Yes|
|CAT Optional Protocol 1||Not party|
|1998 Rome Statute of the International Criminal Court||State Party|
|1948 Charter of the Organization of American States||State Party|
|1969 Inter-American Convention on Human Rights||Not party|
|Competence of Inter-American Court on Human Rights||N/A|
POLICE USE OF FORCE
The Royal Canadian Mounted Police (RCMP) is Canada’s national police force, organised under the Royal Canadian Mounted Police Act.The RCMP is “headed by the Commissioner, who, under the direction of the Minister of Public Safety Canada, has the control and management of the Force and all matters connected therewith”.
The RCMP enforces laws made by Canadian Parliament. “Administration of justice within the provinces including enforcement of the Criminal Code, is part of the power and duty delegated to the provincial governments. The RCMP provides police services under the terms of policing agreements to all provinces (except Ontario and Quebec), Yukon, the Northwest Territories, and Nunavut, and under separate municipal policing agreements to 180 municipalities.”
According to Section 25(1) of Canada’s 1985 Criminal Code (as amended): “Everyone 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.”A peace officer includes all police officers and many prison officers. According to Section 25(3):
a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the 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.
Section 25(4) specifies that a police officer, “and every person lawfully assisting” him or her, is “justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested”, if:
a) The peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
b) The offense for which the person is to be arrested is one for which that person may be arrested without warrant;
c) The person to be arrested takes flight to avoid arrest;
d) The peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
e) The flight cannot be prevented by reasonable means in a less violent manner.
With respect to riots, under Section 32(1), every peace officer
is justified in using or in ordering the use of as much force as the peace officer believes, in good faith and on reasonable grounds,
(a) is necessary to suppress a riot; and
(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.
According to Section 26 of Canada’s Criminal Code: “Everyone 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.”
Canada’s provinces have their own laws and policies to regulate the use of force that involves weapons. Ontario abides by the Equipment and Use of Force Regulation:
Makes “requirements in relation to the use of force including use of approved weapons, training and reporting, as well as use/technical specifications for handguns.”Provincial police have own guidelines for weapons such as conducted electrical weapons (e.g. Tasers), which are also subject to Federal controls.
In 2000, the Canadian Association of Chiefs of Police endorsed a national framework for the use of force that became the basis for police agencies to “build their own use-of-force policies or standards.” The guidelines represent “how an officer enters into or is confronted with a situation, and how he assesses, plans and responds to incidents that threaten officer or public safety. It assists with training officers and provides a reference for decision-making and articulating their actions respecting use of force.”
USE OF FORCE IN CUSTODIAL SETTINGS
Under Section 25(5) of the Criminal Code, which governs the powers in case of escape from a prison, a peace officer “is justified in using force that is intended or is likely to cause death or grievous bodily harm against an inmate who is escaping from a penitentiary”, if:
a) the peace officer believes on reasonable grounds that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm to the peace officer or any other person; and
b) the escape cannot be prevented by reasonable means in a less violent manner.
At Federal level, the Commission for Public Complaints Against the RCMP(CPC), which is an agency of the federal government, distinct and independent from the RCMP, is the key oversight body. There are also separate police oversight bodies at state level. As set out in Parts VI and VII of the Royal Canadian Mounted Police Act, the mandate of the Commission is to:
- receive complaints from the public about the conduct of RCMP members
- conduct reviews when complainants are not satisfied with the RCMP’s handling of their complaints
- initiate complaints and investigations into RCMP conduct when it is in the public interest to do so
- review specified activities; and
- report findings and make recommendations.
In 2015, the Human Rights Committee issued its Concluding Observations on Canada’s sixth periodic report on its implementation of the ICCPR. The Committee noted Canada’s “efforts to establish oversight and accountability mechanisms to investigate serious incidents involving the police at the federal, provincial and territorial levels”, but expressed its concern
about reports of the lack of effectiveness of such mechanisms. The Committee regrets the lack of statistical data on all complaints, investigations, prosecutions, convictions and sanctions imposed on police officers at all levels….
It called on Canada to
strengthen its efforts to ensure that all allegations of ill-treatment and excessive use of force by the police are promptly and impartially investigated by strong independent oversight bodies with adequate resources at all levels, and that those responsible for such violations are prosecuted and punished with appropriate penalties.
VIEWS AND CONCLUDING OBSERVATIONS OF UNITED NATIONS TREATY BODIES
In 2015, the Human Rights Committee issued its Concluding Observations on Canada’s sixth periodic report on its implementation of the ICCPR. The Committee expressed its concern
about reports of the excessive use of force by law enforcement officers during mass arrests in the context of protests at the federal and provincial levels, with particular reference to indigenous land-related protests, G-20 protests in 2010 as well as student protests in Quebec in 2012.
The Committee was also concerned “about reports that complaints are not always promptly investigated and that the sanctions imposed are of a lenient nature”.
Canada is not a state party to the 1969 American Convention on Human Rights and has not accepted the jurisdiction of the Inter-American Court of Human Rights. The Inter-American Commission of Human Rights could make recommendations to Canada on human rights issues on the basis of Canada’s membership of the OAS.
In national jurisprudence the courts have generally allowed a far greater amount of force in the course of arrest than against anyone already in police custody. These cases are in accordance with Section 25(1) of the Criminal Code, which allows officers to use “as much force as is necessary” when performing their duties. In R. v. Nasogaluak, for example, the Supreme Court ruled unanimously that the sentence shouod be reduced. The case concerned the excessive use of force during the course of an arrest, which resulted in the accused suffering two broken ribs and punctured lungs. This case contrasts with the Ontario Court of Appeal’s decision in Tran, where a similar beating, resulting in a broken jaw, warranted a stay of proceedingsbecause, amongst other things, the appellant had surrendered into police custody and “no degree of force was warranted”.
The courts have made it clear, though, that once a person is in custody, particularly when handcuffs or other physical restraints are used, the police must proceed with caution. A detainee’s threats of misbehaviour do not justify police use of force, unless these actions compromise the officer’s safety. Thus, despite the accused’s “disgraceful conduct”, Justice Trotter of the Superior Court found two Toronto Police officers’ decision to tie an electrical cord around a suspect’s face to prevent him from spitting at them as a breach of Sections 7 and 12 of the Charter. In R. v. Cousins, however, Justice Vaillan court ordered a stay of proceedings when police officers arrested a man in a movie theatre and used the arrestee’s body to open the two theatre doors on their way out.