use_of_force_amp_charter_of_rights_and_freedoms_session_slides-24532-20220907.pdf

www.opcva.ca Federal Law Use of Force The Charter of Rights and Freedoms Version: BCT Federal Law | September 2022SL © Queen's Printer for Ontario, 2018 Review Definition of Reasonable Grounds Subjective Justification: An arresting officer must subjectively have reasonable grounds on which to b...

www.opcva.ca Federal Law Use of Force The Charter of Rights and Freedoms Version: BCT Federal Law | September 2022SL © Queen's Printer for Ontario, 2018 Review Definition of Reasonable Grounds Subjective Justification: An arresting officer must subjectively have reasonable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. Objective Justification: there must be such facts as would cause a reasonable person to believe that the suspect has committed or is about to commit an offence. 2 Review Reasonable Grounds • Reasonable Grounds – will always be a question of fact depending on the circumstances of each case • Suspicious circumstances will never be enough. • Reasonable Grounds mean that there must be such facts as would cause a reasonable person to believe that the suspect has committed or is about to commit an offence. • It means that the officer’s belief must be justifiable not only from a subjective point of view, but also from an objective point of view. 3 Objectives To demonstrate knowledge of and the ability to articulate the statutory requirements and limitations related to the: • application of force, • the criminal and civil responsibility surrounding the use of force and • the Charter of Rights and Freedoms. 4 Use of Force s. 25(1) C.C. 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. 5 Use of Force Definition of Justified Protected from criminal and civil liability 6 Use of Force s. 25(2) C.C. Where a person is required or authorized by law to execute a process or to carry out a sentence, • that person or any person who assists him is, • if that person acts in good faith, • justified in executing the process or in carrying out the sentence • notwithstanding that the process or sentence is defective or • that it was issued or imposed without jurisdiction or in excess of jurisdiction 7 Use of Force Definition of Acting in Good Faith With an honest intention and free from any knowledge of irregularity 8 Use of Force When not protected s. 25(3) C.C. Subject to subsection (4) and (5), 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. 9 Use of Force When protected s. 25(4) C.C. Peace officer, every person lawfully assisting the peace officer, Is justified in using force that is intended/likely to cause death/grievous bodily harm to a person to be arrested, if • peace officer making lawful arrest, • person may be arrested without warrant; • the person takes flight to avoid arrest; • reasonable grounds force is necessary to protect the peace officer, person lawfully assisting or any person from imminent or future death or grievous bodily harm AND • the flight cannot be prevented by reasonable means in a less violent manner. 10 continued….. Use of Force Definition of Imminent Impending; menacingly close at hand; threatening Poses a direct and immediate danger to the individual 11 Use of Force S. 25(5) C.C. 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 within the meaning of subsection 2(1) of the Corrections and Conditional Release Act, if • 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 • the escape cannot be prevented by reasonable means in a less violent manner. 12 Use of Force S. 26 C.C. Every 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. 13 Use of Force S. 27 C.C. Everyone is justified in using as much force as is reasonably necessary (a) to prevent the commission of an offence • • (i) for which if it were committed person might be arrested without warrant, AND (ii) that would be likely to cause immediate and serious injury to the person or property of anyone; OR (b) to prevent anything being done that, on reasonable grounds, he believes would, be an offence mentioned in paragraph (a) 14 Use of Force S. 34(1) C.C. A person is not guilty of an offence if a. They believe on reasonable grounds that force or a threat of force is being used against them or another person (the trigger) b. Must have acted for the purpose of defending themselves or others from that use of force of threat of force (the motive); AND c. The act committed is reasonable in the circumstances (the response). 15 Use of Force S. 34(2) C.C. The court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use a weapon; continued……. 16 Use of Force S. 34(2) C.C. (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful. 17 Use of Force (3) Subsection (1) does not apply if the force is used or threatened • by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, • unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. 18 Constitution Act (Charter of Rights and Freedoms) 19 Rights and Freedoms in Canada S. 1 C.A. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 20 Life, Liberty and Security of Person S. 7 C.A. 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. 21 Search and Seizure S. 8 C.A. Everyone has the right to be secure against unreasonable search or seizure. 22 Detention or Imprisonment S. 9 C.A. Everyone has the right not to be arbitrarily detained or imprisoned. 23 Arrest or Detention S. 10 C.A. Everyone has the right on arrest or detention: a. to be informed promptly of the reason therefore; b. to retain and instruct counsel without delay and to be informed of that right; and c. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 24 Proceedings in Criminal and Penal Matters S. 11 C.A. Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; 25 Treatment or Punishment S. 12 C.A. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment 26 Enforcement of Guaranteed Rights and Freedoms S. 24(1) C.A. 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. 27 Exclusion of Evidence Bringing Administration of Justice into Disrepute S. 24(2) C.A. Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. 28 Homework Assignment Federal Law 3 workbook questions Federal Law 3 OPCVA quiz questions 29