Section 7 of the Canadian Charter of Rights and Freedoms guarantees that everyone in Canada has “the right to life, liberty, and security of the person, and the right to not be deprived of those things except in accordance with the principles of fundamental justice.” However, peace officers and other members of law enforcement are legally allowed to interfere with your liberty and physical integrity in order to make a lawful arrest.
Section 25 of the Criminal Code authorizes a police officer to use as much force as is necessary for the purpose of making an arrest.There are limits to what the police can do, however. The amount of force used to make an arrest must be reasonable in the circumstances—any application of force in excess of what is necessary for the police to safely do their job is an unacceptable breach of your Charter protected rights.
If you have been charged with an offence and you believe that the force used against you during your arrest was excessive or unreasonable, you should document any injuries you received and what steps you took to treat them. In an excessive force application (assuming that the arrest itself was not unlawful), it’s up to the person who is claiming excessive force to produce evidence that force was used and that the force used was unreasonable. You will have to testify in court and be cross examined by the Crown prosecutor. The officers will also testify and can be cross examined by you or your defence counsel. Once there is evidence before the court that force was used, the Crown will have to convince the judge that the force was justified by s. 25 of the Criminal Code.
This is a two-step process. First, the judge must decide whether any force was justified in the circumstances. If no force was justified, then the force that was used was excessive. If at least some amount of force was justified, the judge must decide if the force used was “objectively reasonable,” or put another way, whether the force used was reasonably necessary for the officer to make the arrest. The judge will consider the circumstances of the arrest and any real or perceived danger to the officer’s life or safety. In some cases, police conduct in making an arrest can be so egregious that the charges will be “stayed” by the judge. In other cases, the appropriate remedy might be a reduction in sentence.
A lawyer experienced in criminal defence work can help you assess whether your claim of excessive force will be successful and whether you have other viable defences that should be tested at trial.