Excessive Force complaints examine the officer’s use of force to determine its reasonableness. This determination depends on the surrounding facts, circumstances as well as any applicable laws. Excessive force by the police violates the Canadian Charter of Rights and Freedoms. In addition, under s. 26 of the Criminal Code, police may be found criminally responsible for any excessive force. Officers may be held civilly or criminally liable for their actions.
The police power to arrest or detain is not unlimited. An officer must either have a warrant or reasonable and probable grounds to believe that a person has committed or is about to commit a crime. Without a warrant or reasonable and probable grounds, an arrest is outside the scope of an officer’s power to act and the accused may have remedies for false arrest, imprisonment or detention. These remedies are available under the Canadian Charter of Rights and other laws.
“Racial profiling is criminal profiling based on race. Racial or color profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or color resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.”
(North Bay (City) v. Singh (2015), 2015 CarswellOnt 15127, 2015 ONCJ 500 (Ont. C.J.) at para. 8 Scully J.P.)
Certain types of Charter breaches are grave because of their discriminatory nature. For example, searches conducted based on improper racial profiling undermine the values of human dignity and equality that underpin the Charter itself. A finding of racial profiling is a serious matter that undermines public confidence in the rule of law. The practice of racial profiling by police constitutes a form of racial discrimination.
A police officer is justified in committing, or directing the commission of, an act or omission that would otherwise constitute an offence if the officer is engaged in the investigation of an offence or the enforcement of an Act of Parliament, or in the investigation of criminal activity; is designated by a competent authority or senior official; and believes on reasonable grounds that the act or omission is reasonable and proportional in the circumstances. Police officers are not protected from civil liability if they infringe a person's Charter rights in making an arrest. Thus, failing to inform a person of the right to counsel, or subjecting a person to cruel and unusual punishment during an arrest, can give rise to damages against the police and the provincial Crown.