Police use of force: Where is the line?

What limits does Canadian law place on police officers' use of force? When is deadly force justified? Peter Harte is a Northern defence lawyer. He spoke with The Trailbreaker's Loren McGinnis about the law and its limits.

CBC's Loren McGinnis speaks with Peter Harte, a Northern defence lawyer, about excessive force by police

A Northern lawyer with a long history defending accused people in Nunavut and the N.W.T. says training and experience are two factors that could help prevent cases of excessive force by police.

Police use of force has been in the spotlight in all three territories in recent months. Officers are currently under investigation in Whitehorse, Iqaluit, and Yellowknife after videos emerged of alleged police brutality. In Inuvik, Northwest Territories, RCMP allegedly punched a man with a brain injury in the head after his parents warned police that he may cause problems and shouldn't be punched in the head.

Peter Harte is a lawyer based in Yellowknife. He also spent a decade defending police in discipline cases in Ontario.

He spoke to the CBC's Loren McGinnis, host of The Trailbreaker in Yellowknife.

The following interview has been edited and condensed.

How much force are police allowed to use?

The Criminal Code says police officers are allowed to use as much force as is required, provided that the force is necessary for the purpose the officer is using it for, and that the officer is acting on reasonable grounds. In addition, cops are able to use up to lethal force if they need to use that force to prevent the commission of an offence.

So, you could not shoot somebody that's running away. On the other hand, if they're running after somebody with a knife and you think they're going to injure somebody, perhaps lethally, you would be entitled to use lethal force to stop that individual from posing a risk to someone else.

Necessary or reasonable force. What is that?

It's difficult to give an answer that's going to apply to all people all of the time. Say for example, someone is being resistant when you're trying to put handcuffs on them. Police officers are entitled to handcuff people they're arresting and if somebody is being resistant to that, police officers are entitled to use minor pain stimulus techniques to compel the person to put his hands behind his back, twisting a wrist or twisting their arm. On the other hand, I expect it would be difficult for a police officer to justify pistol whipping somebody if they didn't put their hands behind their back.

How has the emergence of handheld video and smartphones with cameras changed the landscape?

It has changed the landscape to an incredible extent. Previously, it was almost impossible to get a court to accept that a police officer had used excessive force in arresting an accused. It has happened in the N.W.T., but in my experience, it required things like getting three accused to have trials on the same day, with the same cop, to get a court to see the pattern. In most cases, police officers are testifying about events that take place when the accused is, for whatever reason, not credible — they may be intoxicated, violent, whatever. In that circumstance, a police officer, who's there with a notebook, presents as a very, very credible witness. Now, with a video record, police officers are not as invulnerable. They don't come forth as having the best record of what took place.

What about a video that can be damning, but doesn't show the whole story?

Ultimately, courts have to deal with the whole story, but that's almost always what's going on in a criminal court. There's no question that a video showing part of the story can be very damning, but at the end of the day, the bottom line is determined by knowledge of what all of the facts are and that's common in most criminal prosecutions.

When does force stop being reasonable?

A couple of examples, where an officer appears in Iqaluit to go into a cell and be using his knees on a guy for no apparent reason. That would be an example of a situation where the force just doesn't appear to be necessary.

There's another example of a guy in Yukon who appears to be in a home and is using his elbow on the face of a guy he's trying to arrest. It's not clear to me that there's any justification for the use of force in that situation.

The recent case in Inuvik is exceptional in some ways because the father took steps to alert the RCMP not to hit his son in the head because of his severe brain injury. What do you make of that case?

I would have thought that the steps that the father had taken to alert the RCMP to the problem that his son might create was a perfect way to ensure that the police knew that in dealing with this guy, that they couldn't strike his head. The report that I saw on the CBC suggests that they were in fact hitting him on the head. In terms of what actually happens, we'll have to see how the facts roll out. It may be that the police had no option but to do what they did. Frequently the police are responding in very, very difficult circumstances to something that presents a threat to the safety not only of themselves but other people around them.

How might prior knowledge of something like a brain injury change the police's right to use force, or where that line of what is reasonable and necessary?

One of the toughest challenges that police officers face is figuring out how to de-escalate a situation. A perfect example is a guy in a community I won't name who regularly failed to show up for court. A very senior police officer had to go and arrest him and found him having breakfast. He said: 'I have to arrest you, but you're eating breakfast... get me a coffee and I'll wait until you're done.' The man readily put his hands behind his back to get handcuffs after he ate. This officer knew that this was a difficult guy to arrest so he was very low key about it.

The initial response that we frequently see from younger officers is: 'I immediately need to take control of the situation, and I'll do that using the force that appears to be appropriate,' and that's how officers are trained. Police officers get 50 hours of training on weapons, 50 hours of training on physical force and only eight hours on de-escalation and controlling people without force. Later on in life they learn that there are other techniques that are very effective, but it takes time and experience to bring those to bear.

How often do police officers get charged or found guilty of using excessive force?

Police are rarely charged and even more rarely convicted, and even more rarely still sentenced to significant time in jail. I don't know what the numbers are in Canada, but I do know that it's relatively rare that police officers are convicted. 

We hear often that the police should not investigate themselves, that there's an inherent bias there. What do you make of that?

I used to do police defence work in Ontario, where I defended police officers charged with misconduct. In my experience, line police officers did not do as good a job investigating other police officers as police officers who were in an internal affairs office or a professional responsibility officer. I have been involved in situations where police officers investigated other police officers and, I thought, did a terrible job. A line officer is going to have a greater level of sympathy for the lapse of judgement on the part of the officer being investigated. I think they just have a greater sense of what it's like being in that situation and they're going to make greater allowances.

Are there situations where investigations by police on police are more likely to result in charges?

If the police officer has a history of problems, there certainly are times I've seen where the officer investigating the police officer become effectively disgusted with the conduct they're seeing because it brings everybody's reputation into the dark side. I think those kinds of situations are absolutely guaranteed to result in charges.


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