With the jury hearing opening statements in the trial of former Minneapolis police officer Derek Chauvin this week, the issues of police powers of arrest and use of force are particularly timely.

While laws in Minnesota differ to some degree from Canada, police officers in Canada are generally authorized to arrest a person they find committing a criminal offence and to use as much force as is reasonably necessary to do so. The Criminal Code of Canada allows a police officer to arrest a person without a warrant who they find to be committing a criminal offence. They may also detain a person for a brief period of time who they reasonably suspect to have committed a criminal offence. If an officer is in the lawful execution of these duties, anyone who resists or willfully obstructs the police officer can be charged with obstruction.

Everyone, including police officers, who are required or authorized by law to do anything in the administration or enforcement of the law may use as much force as is necessary to do so, so long as they are acting on reasonable grounds. Here, members of the RCMP and municipal police forces are duty bound under their enabling statutes to perform all duties that are assigned to them in relation to the preservation of peace, prevention of crime and apprehension of criminals. Given the obligations placed upon police officers, the Criminal Code offers protection from criminal liability where officers are in the difficult position of needing to apply force to carry out their duties. First, a Court will consider whether the officer was in the lawful execution of his or her duty. Second, a Court will consider whether the use of force was subjectively and objectively justifiable in the circumstances.

Courts have long recognized that policing is difficult and dangerous work that involves running into critical situations, which anyone with any sense would run away from. They have held that actions of police officers are not to be judged on a standard of perfection. Even in cases where officers followed training or use of force techniques, which subsequently turned out to be flawed or excessive, Courts have held that police officers should not be held criminally liable so long as in the circumstances, based on an officer’s knowledge belief and training at the time, the use of force could be seen as objectively reasonable.

With respect to the upcoming trial of Mr. Chauvin, we will have to wait to see what the evidence is and what is argued by the prosecution and defence.

Members of the McDougall Gauley Defence Group regularly act for individuals and police officers alleged to have committed assaults or to have exceeded their lawful authority.

Matthew J. Schmeling
McDougall Gauley Defence Group

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