Acting in Authority

From Criminal Law Notebook
This page was last substantively updated or reviewed August 2021. (Rev. # 92266)

General Principles

See also: Peace Officers

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]

CCC (CanLII), (DOJ)


Note up: 25(1), (2), (3), (4), and (5)


Defined terms: "bodily harm" (s. 2), "peace officer" (s. 2), "person" (s. 2), and "public officer" (s. 2)

Section 25(1) justifies certain acts by a protected class of persons including peace officers to use force "to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances."[3]

The regime of s. 25(1) is constrained by the "principles of proportionality, necessity and reasonableness."[4]

Burden

This section provides a statutory defence to a criminal charge. There is an evidential burden on the accused to show evidence that the defence is in issue (or put differently, where there is an "air of reality").[5]

Where an air of reality is raised, the Crown must negate the defence beyond a reasonable doubt.[6]

Level of Precision

Given the dangerous and demanding work of police, the conduct should not be "judged against a standard of perfection."[7]

The rule against weighing to a "nicety" should not be equated with "not measuring it at all."[8] Nor should it be used to change the test from an objective one to a modified objective test or a subjective test.[9]

Elements of Consideration

When considering use of force by a police officer, the court should consider that:[10]

  1. The police officer is required or authorized by law to perform an action in the administration or enforcement of the law.
  2. The police officer acts on reasonable grounds in performing the action he or she is required or authorized by law to perform.
  3. The police officer does not use unnecessary force.

For s. 25 to apply, there must be reasonable doubt on all three elements.[11]

In Civil Liability Cases

Section 25 is meant only to protect peace officers from civil liability in cases where there is reasonable mistake of fact.[12] It also is not intended to provide any extra powers to police that do not already exist.[13]

Mistake of Law

Section 25 does not protect against mistake of law.[14]

Amount of Force

The amount of force must be considered in the "circumstances as they existed at the time the force was used."[15] The amount should not be "measured ... with exactitude."[16]

The amount of force is measured objectively.[17]

Negligence

The authorization permitted under s. 25(1) does not apply where there the person in authority is acting negligently.[18]

Honest But Mistaken Belief

Reliance on honest but mistaken belief in lawful authority can only be used where the conduct is supported by reasonable grounds.[19]

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.

CCC (CanLII), (DOJ)


Note up: 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.

CCC (CanLII), (DOJ)


Note up: 27

The protections provided by s. 27 are not limited to peace officers and can be applied to anyone using force.[20]

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."[21]

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.[22]

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."[23]

  1. R v Campbell and Shirose, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, 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.")
  2. R v Brennan, 1989 CanLII 7169 (ON CA), 52 CCC (3d) 366, per Catzman JA, at p. 375
  3. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 34
  4. Nasogaluak, ibid., at para 32
  5. R v Wilcox, 2015 ABPC 147 (CanLII), at para 113
  6. Wilcox, ibid. at para 113
  7. Nasogaluak, ibid., at para 35
  8. R v Partington, 2021 ABPC 220 (CanLII), at para 12
  9. Partington, ibid., at para 12
  10. Crampton v Walton, 2005 ABCA 81 (CanLII), {{{4}}}, at para 6
  11. Wilcox, supra
  12. Hudson v Brantford Police Services, 2001 CanLII 8594 (ON CA), 158 CCC (3d) 390, 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")
  13. Crampton v Walton, supra
    R v Wilcox, 2015 ABPC 147 (CanLII), at para 111
  14. Hudson, supra
  15. R v Bottrell, 1981 CanLII 339 (BC CA), 60 CCC (2d) 211, per Anderson JA at p 218
  16. Bottrell, ibid. at p 218
  17. Partington, supra, at para 11
  18. Green v Lawrence, 1998 CanLII 19429 (MB CA), 127 CCC (3d) 416, per Huband JA
  19. R v Devereaux, 1996 CanLII 11047 (NL CA), 112 CCC (3d) 243, per Steele JA
  20. R v Hebert, 1996 CanLII 202 (SCC), [1996] 2 SCR 272, per Cory J
  21. R v Scopelliti, 1981 CanLII 1787 (ON CA), 63 CCC (2d) 481, per Martin JA
  22. R v Hannibal, 2003 BCPC 504 (CanLII), per Challenger J, at para 143
  23. Tymkin v Ewatski, 2014 MBCA 4 (CanLII), 306 CCC (3d) 24, per Chartier JA (2:1) leave to SCC denied

Aircraft

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.

CCC (CanLII), (DOJ)


Note up: 27.1(1) and (2)

Breach of Peace

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.

CCC (CanLII), (DOJ)


Note up: 30

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.

CCC (CanLII), (DOJ)


Note up: 31(1) and (2)

Deeming to Act Lawfully During Arrest and Detention

See also: Arrest Procedure

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]

CCC (CanLII), (DOJ)


Note up: 495(3)

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]

CCC (CanLII), (DOJ)


Note up: 498(3)

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]

CCC (CanLII), (DOJ)


Note up: 503(5)

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.

  1. R v Adams, 1972 CanLII 867 (SK CA), 2 WWR 371, 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.

CCC (CanLII), (DOJ)


Note up: 45

See Also