Canada: Liability For Use Of Excessive Force By Law Enforcement Officers

A ruling by Justice François Huot of the Quebec Superior Court on September 4, 2013 offers a good summary of the principles that apply to the liability of a police department for the acts of its officers during an arrest.1

The facts

After leaving work at the end of the day, the plaintiff was stopped by two officers from the defendant city's police department, allegedly for running a red light. Not understanding why she was being stopped, she got out of her car to ask what she had done wrong. Exhausted from her day at work, the plaintiff had a very negative reaction to the response she received from one of the officers, whose tone was very familiar. She considered that she was treated unfairly. She was agitated and motioning with her hands. That was when, without warning, the second officer, who was then a few metres from the plaintiff, moved toward her, grabbed her left arm with his two hands and twisted it into an armlock. The torsion applied by the officer made the plaintiff's elbow crack and was very painful.

The officers then went back to their car for a few minutes. When they returned, the plaintiff was told that she was being put under arrest for disorderly conduct and was handcuffed. After receiving the statements of the offences cited against her and after refusing the officers' offer to drive her to a hospital, the plaintiff was ultimately released.

After the event, the plaintiff went to a hospital where it was determined that nothing was broken, but that the twisting of her left arm had caused severe edema extending over her entire arm. While the edema subsided after a month and the plaintiff was able to resume her normal activities after three weeks, she still had pain for close to a year and lost some flexibility in her arm. Accordingly, she was claiming $50,000 for bodily injury and moral damages and $25,000 for exemplary damages.

The analysis of liability

While a large part of the judgment is concerned with the probative value that should be given to the testimonies of the plaintiff and the officers of the defendant's police department, the interest of the decision lies primarily in the discussion of liability.

The Court began by finding that the officers were at fault because the use of force in the circumstances was unnecessary, uncalled for and not in line with the conduct that could be expected of a law enforcement officer acting reasonably in similar circumstances. Even though the plaintiff's conduct was indeed partly to blame, that did not justify the loss of control on the part of the officer who applied the armlock. In this regard, the Court noted that a law enforcement officer was required to maintain a professional attitude toward citizens and behave in a courteous manner at all times and to resort to force only when necessary. When needed, the force used had to be reasonable and in proportion to the circumstances justifying its use. In this case, the armlock constituted an improper use of force.

Since the causal connection between the harm suffered by the plaintiff and the application of an armlock was not disputed by the defendant city, the Court then turned its attention to determining the damages. Based on the evidence submitted, it awarded the plaintiff $1,540 for monetary damages (loss of wages and other expenses incurred) and $15,000 for bodily injury. As for moral damages for illegal and wrongful arrest and detention, the Court went over the relevant case law and found that in situations of this kind, the courts usually granted compensation ranging from $5,000 to $10,000. In this case, the Court awarded the plaintiff $8,500.

Lastly, the Court had to determine whether it was appropriate to order the defendant city, as the employer of the police officer who had applied the armlock, to pay punitive damages. Indeed, it fell to the plaintiff to prove, by a preponderance of evidence, that the defendant city – in addition to the officer, who was not being sued personally – was guilty of unlawful and intentional interference with the plaintiff's rights in its capacity as "master" in the master-servant relationship that it had with the officer in its police department. The Court found that no evidence to that effect had been presented by the plaintiff, adding that even if the defendant city had been shown to have been negligent and careless in relation to its police officer's involvement in situations involving misuse of authority and excessive and unreasonable force, such evidence would not have sufficed to establish that unlawful and intentional interference by the defendant city had taken place.

Another recent example

This recent ruling affords an occasion to reflect on another interesting decision handed down this past April which also had to do with the use of force by a law enforcement officer in connection with an arrest. In Dubé c. Gélinas,2 the plaintiff was suing a police officer personally along with the officer's employer following an intervention gone wrong. The plaintiff, among other things, had refused to comply with the officer's request to move his vehicle in order to allow Hydro-Québec employees to free a truck that had become stuck on his land and to leave the premises. After the plaintiff categorically refused to move his vehicle, the officer placed him under arrest for obstruction. While the officer was trying to shackle him, the plaintiff escaped, ran toward his vehicle and attempted to put it in gear. While the door was still open, the officer tried to restrain the plaintiff, but he succeeded in putting the vehicle into reverse, forcing the officer to let go. The officer then chased the plaintiff to a helicopter hangar, where the plaintiff tried to close the hangar door on him. With the help of a fellow officer who arrived as backup, the officer, using neck restraint and armhold techniques, was able to gain control over the plaintiff. The plaintiff was then taken to the police station. Complaining of pain, he was subsequently transferred to hospital, where he was released a short time later after a doctor determined that he had some abrasions to the forearm and face and contusions to the back. Following these events, the plaintiff was ultimately acquitted of the six charges laid against him, leading him in turn to take proceedings claiming $402,500 in compensatory damages and $150,000 in exemplary damages.

The Court began with an exhaustive analysis of the applicable legal framework, reiterating that the principles of extracontractual civil liability applied to all citizens and that law enforcement officers, in carrying out their duties, did not benefit from any statutory or jurisprudential immunity. In that regard, a police officer's conduct had to be assessed based on the standard of a prudent and diligent officer faced with similar circumstances. The Court also stressed that a police officer's duty was to investigate and prevent crime, not to decide on a suspect's guilt or innocence or lay charges. Accordingly, the fact that an accused was ultimately found not guilty, or charges were withdrawn or were not laid, did not mean that the officer's conduct should necessarily be considered wrongful. In determining whether there was fault, it was important to avoid hindsight, with the 20-20 vision that it allows, and to focus instead on examining the officer's conduct at the time the arrest was made, giving great weight to the external circumstances surrounding the officer's acts and decisions. The duty to exercise prudence and diligence that a police officer had on making an arrest entailed that the officer have, on a subjective as well as an objective basis, reasonable grounds for believing that the suspect had committed a crime, not that he would be found guilty.

After analyzing the evidence, the Court found that the plaintiff was the author of his own misfortune in this case, and that no fault was committed by the police officer, the plaintiff having caused his own injuries by refusing to move his vehicle and by resisting arrest.

Conclusion

These two decisions serve to illustrate that a determination of whether force used by law enforcement officers during an intervention was or was not appropriate must entail an analysis of the circumstances that surrounded the intervention. Thus the use of force may be considered unreasonable even where the person being apprehended was agitated, whereas resisting arrest and behaving in an overtly hostile manner toward a law enforcement officer may justify the use of force by the officer and serve to break the causal connection with any harm suffered.

Footnotes

1 Gauthier c. Québec (Corporation municipale de la Ville de), 2013 QCCS 4656, Huot J.

2 2013 QCCS 1681, Mandeville J.

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