Only as Much Force as is Necessary

The Constitution Act of 1982 (The Charter of Rights and Freedoms) guarantees basic individual rights.  Those rights include the right 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.

In order to avoid anarchy and for society to function, the right to life and liberty are not absolute.  The Criminal Code gives police (and in some cases citizens) the authority to suspend the rights of persons who have violated the law.  The authority granted to police is wide-ranging and invasive.  It includes the authority to use deadly force and the authority to arrest. 

Along with this authority, come obligations and restrictions police must meet and comply with.  In order to lawfully arrest, police must have reasonable grounds to do so.  Reasonable grounds have been defined as a set of conditions or circumstances that cause an ordinary prudent individual to form a strong belief that goes beyond mere suspicion.  If resistance is encountered during the arrest process, police are given authority to use force.  The amount of force police use must be reasonable.  The law stipulates that police shall only use as much force as is necessary to carry out their lawful purpose. 

In the context of police making an arrest, this means that unless the arrest is lawful, any use of force cannot be justified.  In the case of a lawful arrest, the degree of force must be in keeping with the resistance that police encounter.  Most police departments have extensive policies that outline their use of force policy.   

In the recent case that has garnered so much media attention involving the arrest of Cody Bousquet, there is no doubt that police had the authority to arrest.  The question that must be addressed is whether the amount of force used in making the arrest was appropriate.  Could police have accomplished their lawful purpose, that purpose being to arrest Mr. Bousquet, using less force than was used, without putting themselves in danger?    

By now many have viewed the surveillance video presented in court last week during Mr. Bouquet’s trial.  Police actions on the video have been interpreted in a variety of ways.  My purpose here is not to add my interpretation to that long list.  The incident is currently under investigation by the RCMP.  The outcome of that investigation will be presented to the Crown’s office and a determination will be made if the amount of force used by police exceeded what was necessary.  In the event charges are deemed to be warranted, the officers involved will be required to appear in a court of law to justify their actions.    

The real issue that needs to be addressed is this: There are indications that the Winnipeg Police Service became aware of this video approximately a year ago. As the incident involved the Chief’s nephew, again, there is a high degree of probability that the Chief was made aware of the video and its contents.  When the video became a matter of public record last week the Winnipeg Police Service wasted no time arranging for an external investigation to be undertaken by the RCMP.  The issue then is this: why was that investigation not undertaken a year ago when the Winnipeg Police Service first became aware of the contents of the video? 

Had Mr. Bousquet quietly plead guilty and had his lawyer not brought the video forward, would the Winnipeg Police Service have asked the RCMP to initiate an investigation?  After sitting on the video for a year, it doesn’t seem likely.       

For those of you that don’t remember what happens when the Police Service does not take the appropriate steps to fully investigate the actions of its members, can you say ‘J. J. Harper’?  Can you say ‘A.J.I’?

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2 comments on “Only as Much Force as is Necessary

  1. skutchy says:

    Very well said. Lets hope the appropriate charges are laid (is it perjury to make a false police report as a police officer?)

    In answer to your question the Criminal Code of Canada defines perjury as:
    “(E)very one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.”

    Menno

  2. brittanymaria says:

    Excellent blog post and it really helps to clear some of the issues here. I feel that these officers DID use more force than was necessary and that the degree of force was NOT proportionate with the resistance they were encountering from the suspect. He seemed to be complying when they continued to attack him. I feel that they could have arrested him using less force than they did, without putting themselves in danger, as there were so many officers on top of him, there was almost no possible way that he could cause any more harm.

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