The Police Used Excessive Force: How Can That Affect My Case?

PUBLISHED ON March 18, 2024

What is written below provides a brief, and general, explanation about how excessive force by the police can affect a criminal case. This is not legal advice and is not intended to be so. Should you require legal advice about your case, you should consult with an experienced criminal lawyer.

What is unreasonable force?

Pursuant to section 25 of the Criminal Code, police officers are only permitted by law to use as much force as is necessary for the administration and enforcement of the law. The force that falls outside of this is unreasonable. So, while the police are permitted to use physical force, it must be both necessary and reasonable.  

While police officers are not expected to measure the force they use with exactitude, using excessive force during an arrest or detention has repeatedly been held to breach an accused’s Charter rights. When such a breach is found, the court will determine whether to stay the charges (effectively end the prosecution) as being the “clearest of cases” requiring such an impactful remedy or, alternatively, a lesser remedy, including the exclusion of evidence at trial.  

What rights are involved?

The excessive use of force by a police officer against someone the officer seeks to detain or arrest is a violation of that person’s rights as protected by: 

Section 7 of the Charter. Section 7 of the Charter provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

A gratuitous use of force during an arrest is also a violation of the arrestee’s right not to be dealt with cruelly by state agents.

Section 12 of the Charter provides that: 

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

What happens when the police use force that is unnecessary or excessive in particular circumstances?

When the police have violated the right to the security of the person, the right not to be deprived thereof except as reasonably necessary, and/or the right not to be subject to cruel and unusual treatment, an application can be made for a stay of the charges pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms.

Stays pursuant to section 24(1) are appropriate where state conduct compromises the fairness of an accused’s trial and/or where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process. One judge stated it this way:

The role played by police officers in law enforcement is critical to the maintenance of a society that respects the rule of law. As a result, society vests police officers with powers and authority that other citizens do not have. When police officers exceed their authority and abuse their power by using excessive force against a suspect, they generate disrespect for the police generally, which threatens the rule of law

Should a Court find that a stay is not warranted, the matter does not end there. In the alternative, the Court can exclude evidence that was obtained by the police – a lesser remedy – if the Court finds that the admission of the evidence would bring the administration of justice into disrepute. Often, the exclusion of evidence will effectively end the prosecution. Finally, sentence reduction is a potential remedy for the excessive use of force.  

Should you be charged with a criminal offence where the police used excessive force, contact a criminal defence lawyer to receive legal advice. For a consultation with Brian Ross, call (416) 658-5855.

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Brian Ross is a founding partner at Canada’s largest criminal Law firm, Rusonik, O’Connor, Robbins, Ross & Angelini, LLP. Prior to founding this firm, Brian was a partner at Pinkofskys, a leading law firm famous for its vigorous defence of its clients.

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Mr. Ross is a member of the Criminal Lawyer’s Association and Legal Aid Ontario’s “Extremely Serious Matters” Panel, consisting of criminal lawyers deemed to have the proven experience necessary to conduct trials in the most serious of criminal matters.

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