Acting in Authority
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General Principles
It is a constitutional principle that all authorities, from high office to constable, are subject to the "ordinary law of the land".[1]
The police have no common law authority to break the law in order to achieve a greater good.[2]
Sections 25 to 31 concern the "Protection of Persons Administering and Enforcing the Law".
- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
- (a) as a private person,
- (b) as a peace officer or public officer,
- (c) in aid of a peace officer or public officer, or
- (d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
- Idem
(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.
- When not protected
(3) Subject to subsections (4) [protection of persons acting under authority – when protected] and (5) [protection of persons acting under authority – power in case of escape from penitentiary], a person is not justified for the purposes of subsection (1) [protection of persons acting under authority] in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.
- When protected
(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if
- (a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
- (b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
- (c) the person to be arrested takes flight to avoid arrest;
- (d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
- (e) the flight cannot be prevented by reasonable means in a less violent manner.
- Power in case of escape from penitentiary
(5) A peace officer is justified in using force that is intended or is likely to cause death or grievous bodily harm against an inmate who is escaping from a penitentiary within the meaning of subsection 2(1) of the Corrections and Conditional Release Act, if
- (a) the peace officer believes on reasonable grounds that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm to the peace officer or any other person; and
- (b) the escape cannot be prevented by reasonable means in a less violent manner.
R.S., 1985, c. C-46, s. 25; 1994, c. 12, s. 1.
[annotation(s) added]
Section 25 is meant only to protect peace officers from civil liability in cases where there is reasonable mistake of fact. It does not apply to any mistake of law.[3]
- Excessive force
26 Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.
R.S., c. C-34, s. 26.
- Use of force to prevent commission of offence
27 Every one is justified in using as much force as is reasonably necessary
- (a) to prevent the commission of an offence
- (i) for which, if it were committed, the person who committed it might be arrested without warrant, and
- (ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
- (b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
R.S., c. C-34, s. 27.
The protections provided by s. 27 are not limited to peace officers and can be applied to anyone using force.[4]
- Deadly Force
The use of deadly force can be justified under s. 27 where the commission of the offence is "likely to cause immediate and serious injury".[5]
- Use of force on board an aircraft
27.1 (1) Every person on an aircraft in flight is justified in using as much force as is reasonably necessary to prevent the commission of an offence against this Act or another Act of Parliament that the person believes on reasonable grounds, if it were committed, would be likely to cause immediate and serious injury to the aircraft or to any person or property therein.
- Application of this section
(2) This section applies in respect of any aircraft in flight in Canadian airspace and in respect of any aircraft registered in Canada in accordance with the regulations made under the Aeronautics Act in flight outside Canadian airspace.
2004, c. 12, s. 2.
- Preventing breach of peace
30 Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.
R.S., c. C-34, s.
- Arrest for breach of peace
31 (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.
- Giving person in charge
(2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable grounds the peace officer believes has, witnessed the breach of the peace.
R.S., c. C-34, s. 31.
When considering the use of potential excessive force, the court should consider "the reasonable belief of the officer in all the circumstances as they existed at the time which belief must be justified by the facts at the time." The belief must be subjectively held as well as objectively reasonable.[6]
- General Terms Defined
Section 2 defines "peace officer".
- ↑
R v Campbell and Shirose, [1999] 1 SCR 565, 1999 CanLII 676 (SCC), per Binnie J (9:0) ("...principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land.")
- ↑ R v Brennan, 1989 CanLII 7169 (ON CA), per Catzman JA, at p. 375
- ↑ Hudson v Brantford Police Services, 2001 CanLII 8594 (ON CA), per Rosenberg JA (3:0), at para 24 ("s. 25(1) protects the officer from civil liability for reasonable mistakes of fact and authorizes the use of force")
- ↑ R v Hebert, [1996] 2 SCR 272, 1996 CanLII 202 (SCC), per Cory J
- ↑ R v Scopelliti, 1981 CanLII 1787 (ON CA), per Martin JA
- ↑ R v Hannibal, 2003 BCPC 504 (CanLII), per Challenger J, at para 143
Peace Officers
Section 25(1) will protect a peace officer who performs an unlawful consent search who had "reasonable grounds" to believe they had consent and the error is a one of a "mistake of fact".[1]
- ↑
Tymkin v Ewatski, 2014 MBCA 4 (CanLII), per Chartier JA (2:1) leave to SCC denied
Deeming to Act Lawfully During Arrest and Detention
495 [arrest without warrant by peace officer]
[omitted (1) and (2)]
- Consequences of arrest without warrant
(3) Notwithstanding subsection (2) [public interest exception to arrest power], a peace officer acting under subsection (1) [warrantless arrest power] is deemed to be acting lawfully and in the execution of his duty for the purposes of
- (a) any proceedings under this or any other Act of Parliament; and
- (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2) [public interest exception to arrest power].
R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.
[annotation(s) added]
498 [release by peace officer (warrantless arrest)]
[omitted (1), (1.01), (1.1) and (2)]
- Consequences of non-release
(3) A peace officer who has arrested a person without a warrant, or who has been given the custody of a person arrested without a warrant, for an offence described in subsection (1) [release from custody – arrest without warrant], and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of
- (a) any proceedings under this or any other Act of Parliament; or
- (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1) [release from custody – arrest without warrant].
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble); 2019, c. 25, s. 213.
[annotation(s) added]
503 [taking person before justice after arrest]
[omitted (1), (1.1), (2), (2.1), (2.2), (2.3), (3), (3.1) and (4)]
- Consequences of non-release
(5) Despite subsection (4) [release of person about to commit indictable offence], a peace officer having the custody of a person referred to in that subsection who does not release the person before the expiry of the time prescribed in paragraph (1)(a) [bring detainee to justice – if justice available] or (b) [bring detainee to justice – if justice not available] for taking the person before the justice shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of
- (a) any proceedings under this or any other Act of Parliament; or
- (b) any other proceedings, unless in those proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (4) [release of person about to commit indictable offence].
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble); 2019, c. 25, s. 217.
[annotation(s) added]
Section 495(3) should be construed to deny any defence for failure to comply with 495(2).[1]
Notably there is no similar deeming provision in relation to the obligations under s. 503 which requires the accused to be brought to a justice.
- ↑ R v Adams, 1972 CanLII 867 (SK CA), per Culliton CJ
Surgical Operations
- Surgical operations
45. Every one is protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person if
- (a) the operation is performed with reasonable care and skill; and
- (b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.
R.S., c. C-34, s. 45.