Civil Liability and the Police Use of

Force in Canada
Rick Parent, PhD, Sergeant, Manager, Research and Academic
Development, Justice Institute of British Columbia Police Academy
Simon Verdun-Jones, JSD, Professor, School of Criminology, Simon Fraser
University

In Canada, the use of force by police must occur only within the parameters
of federal laws, provincial regulations, and organizational policies. There is no
obligation on the part of the police to use force in every situation, for which it
would be legally justifiable to do so (Sec. 25, CCC). The use of force is dependent
upon both the unique circumstances of the incident and the particular decision-
making strategies of the individual officer.

Statutory provisions serve to govern the powers, status, and liability of police
officers within Canada. This legislative framework also provides a means for
determining when and by whom liability for the tortuous acts of police officers
will be borne. Liability may flow from the breach of a direct duty of care (primary
liability) or vicariously from a legally recognized responsibility for the actions of
another (secondary liability). In either case, negligence will only lie where there is
a duty, breach of the standard of care, and resulting losses.

Vicarious Liability
In common law, the test for determining whether a police officer is negligent is
based upon whether there existed a reasonable and foreseeable risk of harm. This
will vary, however, with the power and duties being exercised by the police officer
at the time that the alleged act of negligence was committed. The Supreme Court
of Canada in Priestman v. Colangelo (1959) cited the following statement from the
English case, Fisher v. Ruislip - Northwood Urban District Council (1944):

The nature of the power must, of course, be examined before it can be said
that a duty to take care exists, and, if so, how far the duty extends in any given
circumstances. If the legislature authorizes the construction of works which
are in their nature likely to be a source of danger and which no precaution can
render safe, it cannot be said that the undertakers must either refrain from
constructing the works or be struck with liability for accidents which may
happen to third persons. So to hold would make nonsense of the statute.

The Supreme Court of Canada in Priestman went on to state . . .

In deciding whether in any particular case a police officer had used more
force than is reasonably necessary to prevent an escape by flight within the
meaning of §§(4) of §25 of the Code, general statements as to the duty to take
care to avoid injury to others made in negligence cases . . . cannot be accepted
as applicable without reservation unless full weight is given to the fact that
the act complained of is one done under statutory powers and in pursuance

Law Enforcement Executive Forum • 2007 • 7(1) 31

 of a statutory duty. The causes of action asserted in these cases were of a
different nature.

The performance of the duty imposed upon police officers to arrest offenders
who have committed a crime and are fleeing to avoid arrest may, at times and of
necessity, involve risk of injury to other members of the community. Such risk, in
the absence of a negligent or unreasonable exercise of such duty, is imposed by the
statute and any resulting damage is, in my opinion, damnum sine injuria (Priestman
v. Colangelo, 1959).

In Priestman, the Supreme Court of Canada notes that general statements regarding
negligence may not necessarily apply in instances involving authorized use of
force. In McIndoe v. Pasmen (1991), the B.C. Supreme Court concluded that there
was a reasonable and foreseeable risk that an officer running with his finger on the
trigger of his gun would stumble and cause it to discharge. The Court indicated
that the reasonableness of the action was dependent on the duty being executed by
the officer at the relevant time:

Therefore, in my opinion, it was negligent for Kirkpatrick to have his finger on

the trigger of the potentially dangerous weapon in these circumstances. There
were no urgent or dangerous conditions evident to him, which indicated a
risk of possible danger to his safety at that time. Nor was the action necessary
for the purpose of the execution of his duty, which was to carry out a counter-
attack road block and search for liquor. (McIndoe v. Pasmen, 1991)

The B.C. Supreme Court then went so far as to suggest that the burden shifts to the
defendant to disprove negligence, on a balance of probabilities, in the situation in
which the plaintiff is injured by force applied directly to him by the defendant. The
Court quotes from a Supreme Court of Canada case, Cook v. Lewis (1951):

Where a plaintiff is injured by force applied directly to him by the defendant

his case is made by proving this fact, and the onus falls upon the defendant
to prove “that such trespass was utterly without his fault.” In my opinion,
Stanley v. Powell rightly decides that the defendant in such an action is
entitled to judgment if he satisfies the onus of establishing the absence of
both intention and negligence on his part. (Cook v. Lewis, 1951)

In summary, these rulings indicate that vicarious liability will vary with the powers
and duties being exercised by the police officer at the time the allegedly negligent
act was committed. The acceptable level of force, therefore, will likely vary with
each unique situation based upon the noted principles outlined by the courts.

Nonetheless, there are numerous cases in which a party has brought an action
against the police on the basis that excessive force has been used in the performance
of duties. Generally, the courts have been resistant to finding liability against the
police. This is reflected in the following cases, which generally raise Section 25 of
the Criminal Code as a defence.

In Davidson v. City of Vancouver (1986), the police removed a child from the custody
of the plaintiff’s sister as per an Ontario Court Order. The plaintiff responded by
launching a civil action against the police agency, alleging that it was not authorized

32 Law Enforcement Executive Forum • 2007 • 7(1)

to do so and had acted excessively. At trial, the Court held that Section 25(2) of the
Criminal Code applied and provided the police with immunity in these specific
circumstances (Davidson v. City of Vancouver, 1986).

In Goulet v. R. and Gosselin (1987), a police officer arrived at the residence of the
plaintiff to investigate a reported theft of automobile. During the investigation,
the plaintiff and the police officer became involved in an altercation resulting in
the plaintiff’s arrest. While the arrest was taking place, a scuffle ensued, which
resulted in the police officer striking the plaintiff in the face. The plaintiff suffered
personal injury and subsequently sued the officer. At trial, the judge dismissed
the action ruling that the force used by the officer was reasonable (Goulet v. R. and
Gosselin, 1987).

In Allarie v. Victoria City (1993), two police officers were dispatched to a house
where an intoxicated individual was threatening others with a knife. As the police
attempted to arrest the individual, a struggle ensued with one police officer using
a baton to strike two quick blows to the suspect’s arm. As the police officer was
about to strike the suspect a third time, the individual suddenly moved resulting in
the baton striking the suspect’s head. As a result of the blow, the police were able to
effect the arrest and subsequently transported the suspect to a nearby hospital for
treatment. Unfortunately, at the hospital, it was learned that the suspect (plaintiff)
had suffered brain injury from the police officer’s baton strike and was required
to undergo surgery.

At trial, the judge dismissed the action, citing that the force used by the police
officers was reasonable under the circumstances. The trial judge also ruled that
the police were immune from the action pursuant to Section 25(1) of the Criminal
Code (Allarie v. Victoria City, 1993).

In Christopaterson v. Saanich (District) (1994), the police were summoned to deal

with two individuals who were intoxicated, refusing to leave a nearby hotel. When
the police arrived, the plaintiff and her friend still refused to leave, kicking one of
the four police officers that had responded to the call. As a result, pepper spray
was deployed, and the plaintiff was subsequently arrested.

The plaintiff sued the police on the basis that the force used was excessive. At trial,
the judge dismissed the action, citing that the force used was not excessive and
therefore justified under Section 25(1) of the Criminal Code, thereby exempting the
police from criminal and civil liability [Christopaterson v. Saanich (District), 1994].

In Nault v. Tromblev (1995), a police officer stopped a vehicle, suspecting that

the driver’s ability to operate the motor vehicle was impaired. Upon further
investigation, the driver of the vehicle was subsequently detained and placed in
the rear of the police vehicle. After being placed in the police vehicle, the suspect
began to act violently, kicking out the rear window of the vehicle. The suspect
(plaintiff) then stuck his head and shoulders out of the vehicle.

In response, the police officer struck the suspect on the nose with a flashlight.
When the suspect attempted to stick his head and shoulders out a second time, he
was struck once again by the officer. At trial, the judge dismissed the action, ruling

Law Enforcement Executive Forum • 2007 • 7(1) 33

that the police officer’s use of force was not excessive under the circumstances
(Nault v. Tromblev, 1995).

In Anderson v. Port Moody (City) Police Department (2000), a police officer entered
the subject’s property in a marked vehicle in order to pursue a suspect. The subject
blocked the police officer’s exit with his backhoe, as he ordinarily did to prevent
persons from accessing his property or from leaving at once. The police officer
advised the subject that if he did not move the backhoe, he would be arrested.
The subject walked away. The police officer radioed for back-up but did not know
how long it would take to arrive. He exited his police vehicle and one of several
aggressive dogs came charging at him at which time he used pepper-spray to stop
the dog.

The police officer then received instructions from his superior to arrest the
subject. The subject resisted and was pepper-sprayed twice in the course of being
handcuffed. The subject was charged with and convicted of resisting a police
officer. A public inquiry exonerated the constable. At trial, each side agreed that
the subject’s behaviour was bizarre and that dogs were a factor in assessing risk.
The only difference in view was whether the officer should have used an empty
hands technique or retreated instead of using pepper spray. The officer and the
City argued that appropriate necessary force was used to effect a lawful arrest.

At trial the action was dismissed. The court ruled that the police officer was entitled
to be on the subject’s property in order to investigate a crime. The subject’s conduct
gave reasonable and probable grounds for an arrest. It was not safe for the officer
to retreat to a locked car in unknown territory with an actively resisting subject
who was acting in a bizarre manner, nor was it reasonable for him to attempt an
empty hands technique first, given the exigencies of the situation. The officer did
not know how soon back-up officers would arrive. Use of pepper spray was within
the options in the police force’s policy. His conduct was not negligent or grossly
negligent. The court stated that even if it was, the subject would have been found
to be 80% contributory negligent, and his damages would have been limited to
$2,500. (Anderson v. Port Moody (City) Police Department, 2000).

In the case of Thomson v. Ontario (2001), the plaintiff police officers boxed in a motor
vehicle; however, the driver manoeuvred his vehicle in an attempt to escape. As
a result, the officers had to jump out of the way, discharging their firearms at the
vehicle. The driver was hit by two shots but not seriously injured. At the time of
the investigation by the Ontario Special Investigations Unit (SIU), the plaintiffs
declined to give statements. The director of the SIU then laid charges of unlawful
use of a firearm and aggravated assault. The plaintiffs were discharged. The
plaintiffs claimed malicious prosecution and breaches of their rights under the
Charter of Rights and Freedoms. The Charter claims were based on the Crown’s
failure to disclose certain information during the criminal proceedings.

In court, the motion was allowed in part. The plaintiffs’ claims based on the
breaches of Charter rights were dismissed, as the plaintiffs could not have obtained
a better result than dismissal of the charges. The motion for summary judgment
of the claims for malicious prosecution was also dismissed; however, the synopsis
relied on by the director of the SIU should have set out why the SIU investigators
concluded that no one at the scene was in danger (Thomson v. Ontario, 2001).

34 Law Enforcement Executive Forum • 2007 • 7(1)

While the courts have been generally resistant to finding liability against the police,
there have been exceptions. Judgments concerning the issue of liability and police
use of force are additionally reflected in the following cases.

In the case of Odhavji Estate v. Woodhouse (2003), Odhavji was fatally shot by
police officers. As a result, the Ontario Special Investigations Unit began an
investigation. The police officers involved in the incident did not comply with
SIU requests that they remain segregated; that they attend interviews on the same
day as the shooting; and that they provide shift notes, on-duty clothing, and blood
samples in a timely manner. Under Section 113(9) of the Ontario Police Services
Act, members of police forces are under a statutory obligation to cooperate with
SIU investigations and, under Section 41(1), a chief of police is required to ensure
that members of the force carry out their duties in accordance with the provisions
of the Act. The SIU cleared the officers of any wrongdoing.

Odhavji’s estate and family, however, commenced a variety of actions. The statement
of claim alleged that the lack of a thorough investigation into the shooting incident
had caused them to suffer mental distress, anger, depression, and anxiety. They
claimed that the officer’s failure to cooperate with the SIU gave rise to actions for
misfeasance in a public office against the officers and the chief of police and to
actions for negligence against the chief, the Metropolitan Toronto Police Service
Board, and the Province of Ontario. The defendants brought motions under rule
21.01 (1) (b) of the Ontario Rules of Civil Procedure to strike out the claims on the
ground that they disclose no reasonable cause of action. The motions judge and
the Court of Appeal struck out portions of the statement of claim.

The Supreme Court of Canada ruled that the appeal should be allowed in part and
the cross-appeal dismissed. The actions in misfeasance in a public office against the
police officers and the chief and the action in negligence against the chief should
be allowed to proceed. The actions in negligence against the Province should be
struck from the statement of claim (Odhavji Estate v. Woodhouse, 2003).

In Keeling v. Insurance Corporation of British Columbia (1997), two police officers

were on patrol when they observed a vehicle stopped at a red light. When the
officers ran a computer check of the licence plate, they discovered that the vehicle
was reported as stolen. In an attempt to ensure that the vehicle could not flee
from its position, the police suddenly manoeuvred their police vehicle in front of
the stopped vehicle. As this occurred, one of the police officers quickly exited the
vehicle and approached the driver with his gun drawn.

During his rapid approach, the officer accidentally discharged his firearm causing
a bullet to enter into the neck area of the seated driver. The injuries resulted in
the plaintiff being a quadriplegic for life. In addition, it was later learned that the
vehicle in fact was not stolen. The owner of the vehicle, a friend of the plaintiff,
had erroneously reported it as stolen in an attempt to have the vehicle returned
earlier than the date to which he had agreed.

At trial, the judge ruled that the police officers were jointly liable for the plaintiff’s
injuries that resulted during their bungled “take-down manoeuvre.” The judge
added that it was reasonably foreseeable, to both Smitas and Oleskiw, that a
gun could accidentally discharge during the manoeuvre and injure Keeling, but

Law Enforcement Executive Forum • 2007 • 7(1) 35

neither addressed his mind to the risk of accidental discharge. Both police officers,
therefore, were jointly liable for the injuries sustained by the plaintiff (Keeling v.
Insurance Corporation of British Columbia, 1997).

In Berntt v. City of Vancouver (1997), a police officer shot a teenager in the head
with a plastic bullet during a riot that occurred shortly after the 1994 Stanley Cup
hockey game. The Stanley Cup riot began after a crowd of over 50, 000 individuals
gathered in downtown Vancouver. The mood of the crowd was upbeat early in
the evening, but the event quickly turned into a drunken brawl. Windows were
smashed, and stores were being looted. As a result, riot control officers were
summoned to quell the unruly crowd.

The plaintiff, Berntt, was one of the key participants in the riot. Berntt was observed
throwing objects at the police as well as trying to obstruct an officer who was
attempting an arrest. As a result, Berntt was shot in the back with a plastic bullet
fired from an anti-riot weapon known as an Arwen gun. Berntt was treated for his
injuries at the scene and released. Upon release, Berntt returned to the front of the
unruly crowd and began to once again taunt the police.

As Berntt was walking away from the front of the crowd, he was shot once again
with the Arwen gun. Berntt observed the shot being fired by the police and
ducked. Unfortunately Berntt’s action caused the plastic projectile to strike the
head portion of his body. As a result, Berntt suffered serious head injuries and was
in a coma for more than a month.

At trial, Berntt stated that he continues to suffer memory and speech difficulties
as a direct result of the injuries that he sustained on the night of the riot. The trial
judge ruled that the police officer was justified when he fired the first shot at the
plaintiff; however, the officer committed assault and battery when he fired the
second shot as the plaintiff did not now pose a threat. As a result, the police were
found to be 25% at fault for the injuries that resulted to the plaintiff. The plaintiff
was found to be 75% at fault, as he returned to the front line of the riot, after being
shot by the police (Berntt v. City of Vancouver, 1997).

Interestingly, the initial decision rendered in the case of Berntt v. City of Vancouver
(1997) was appealed to the Supreme Court of B.C. Upon appeal, the initial decision
against the Vancouver Police Department was reversed with the presiding judge
noting that the articulation of the police officer is critical in determining the
evidentiary impact of the decision to use force.

In the 1997 ruling, the presiding judge largely based his determination of the police
officer’s decision to use force on the video footage of the riotous scene; however,
upon appeal, the judge in the 2001 ruling based his determination of the police
officer’s decision to use force upon what the officer experienced:

. . . the trial judge must proceed to the third and fourth questions. In so
proceeding, he or she should be a doppelganger to the peace officer whose
conduct is in issue.

. . . that the issue is whether a reasonable person standing in the position

of the constable, who had the same responsibility as the officer to bring the

36 Law Enforcement Executive Forum • 2007 • 7(1)

 riot to an end, and who was operating on the same database as the officer
acquired both in previous training and experience and from the dynamics of
that evening including the need to rescue other officers, the need to use gas
and other anti-riot devices, and who had previously shot a number of rioters
without causing serious injury, could reasonably have concluded that it was
part of his responsibility to shoot the plaintiff with an Arwen gun.

. . . His choice to fire on the plaintiff was neither unnecessary nor lacking in
reason. It follows that the constable’s actions were justified pursuant to §32.
This is a complete defence, and accordingly, the plaintiff’s action must be
dismissed. (Berntt v. The City of Vancouver et al., 2001).

Liability in Regard to Failure to Train

In addition to vicarious liability, police agencies are also vulnerable to liability
for inadequate training of police officers. For example, an injured third party can,
in addition to pursing the appropriate level of government for vicarious liability,
pursue a direct cause of action for inadequate training of the police officer in the
use of force. It is also interesting to note that the police officer may have a cause of
action for personal injury and losses attributable to inadequate training in the use
of force against his or her police agency.

Third Party Action in Relation to Inadequate Police Training

As stated, the government may also be liable for third party injuries that occur
as a direct result of the police officer’s use of force. The public has a reasonable
expectation to believe that police officers authorized to use weapons are adequately
trained for the responsibility. Included within this concept is the government’s
common law duty of care to the injured party. In the case of Just v. B.C. (1989), the
Honourable Mr. Justice Cory speaking for the majority ruled as follows:

As a general rule, the traditional tort law duty of care will apply to a
government agency in the same way that it will apply to an individual. In
determining whether a duty of care exists, the first question to be resolved
is whether the parties are in a relationship of sufficient proximity to warrant
the imposition of such a duty. In the case of a government agency, exemption
from this imposition of duty may occur as a result of an explicit statutory
exemption. Alternatively, the exemption may arise as a result of the nature of
the decision made by the government agency. That is, a government agency
will be exempt from the imposition of a duty of care in situations, which arise
from its pure policy decisions. (Just v. B.C., 1989)

In the case of the British Columbia, there is no explicit statutory exemption making
the government liable in those instances that indicate a failure to train. This would
be in addition to the issue of vicarious liability, which may be imposed under
Section 11 of the Police Act.

The Police Officer’s Cause of Action for Inadequate Training

A police officer injured while in the course of performing his or her duties may
allege that the government agency is negligent for failure to adequately train

Law Enforcement Executive Forum • 2007 • 7(1) 37

him or her in the use of force. It is important to emphasize that the government
agency has a responsibility to ensure that use of force is effectively authorized by
regulating the qualifications of those individuals who are granted this authority.

It is also within the public interest to ensure that police officers receive reasonable
training in the use of force. In fact, a lack of policy, procedures, or training may
serve to expose both the police officer and the government agency to liability as
the public stakeholder is placed in an unreasonable risk of accidental harm.

As a result of these factors, it is no longer sufficient to simply document that an

individual attended a training session. Importantly, police agencies must also be
able to demonstrate that . . .

• The training was necessary as validated by a task analysis.

• The persons conducting the training were, in fact, qualified to conduct such
training.
• The training did, in fact, take place and was properly conducted and documented.
• The training was “state-of-the-art” and up-to-date.
• Adequate measures of mastery of the subject matter can be documented.
• Those who did not satisfactorily “learn” in the training session have received
additional training and now have mastery of the subject matter.
• Close supervision exists to monitor and continually evaluate the trainee’s
progress.

Liability and General Duty of Care

In addition to the specific issue of liability regarding police use of force, there may
also be allegations of negligence concerning other operations of the police agency.
In this regard, there appears to be a growing trend towards the number of litigated
matters concerning the conduct of policing in general. This trend is reflected in the
following cases.

Failure to Protect the Public

In this case, the plaintiff was an infant who had been shot by his school teacher.
As a result of the injury, civil action was launched against the police agency as it
had knowledge that the school teacher had made several previous attempts to
injure the infant but had not acted. The argument was made that the police were
negligent as they had not apprehended the school teacher before he could inflict
injury upon the infant. Secondly, the police were also negligent as they had failed
to guard the safety of the infant. The case eventually was heard by the Court of
Appeal, which ruled that there was no duty of care owed by the police on public
policy considerations in this specific instance (Osman v. Ferguson, 1993).

During this case, in the early morning hours of August 24, 1986, the plaintiff, who
lived in a second-floor apartment in the Church and Wellesley area of Toronto, was
raped at knifepoint by Paul Douglas Callow, who had broken into her apartment
from a balcony. At the time, the plaintiff was the fifth victim of similar crimes by
Callow, who would become known as the “balcony rapist.”

38 Law Enforcement Executive Forum • 2007 • 7(1)

In this action, the plaintiff sued the Metropolitan Toronto Police Force for damages
on the grounds that it had conducted a negligent investigation and failed to warn
women of the risk of an attack by Callow and the police force had violated her
rights under §7 and §15 of the Canadian Charter of Rights and Freedoms.

The evidence at trial established that, before the rape of the plaintiff, Callow had
committed similar crimes on December 31, 1985; January 10, 1986; and July 25,
1986. All the crimes took place in apartment residences in the Church and Wellesley
area of the City of Toronto.

The Ontario Court, General Division, ruled that there should be judgment for the
plaintiff. The Court stated that the police are statutorily obligated to prevent crime,
and they owe a duty to protect life and property. The police force failed in its duty
to protect the plaintiff and the other victims from a serial rapist known to be in
their midst by failing to warn them so that they might have had the opportunity
to take steps to protect themselves. A meaningful warning could and should have
been given to the women who were at particular risk. This warning would not
have compromised the investigation.

The professed reason for the police not providing a warning (i.e., that the assailant
might flee) was not genuine. The real reason was that police officers assigned to the
case believed that women living in the area would become hysterical and scare off
the offender, jeopardizing the investigation. In addition, police were not motivated
by any sense of urgency because the balcony rapist crimes were regarded as not as
serious as other rapist crimes that were distinguished by more violence.

The police were aware of the risk but deliberately failed to inform her of it. The
defendants exercised their discretion in the investigation in a discriminatory and
negligent way, and their exercise of discretion was contrary to the principle of
fundamental justice. The plaintiff was entitled to an award of damage as a remedy
under §24 of the Charter.

Damages should be assessed in the following amounts: general damages, $175,000;

special damages to date, $37,301.58; and future costs, $8,062.74. The plaintiff was
also entitled to an amount that equalled the present value of the sum required to
produce $2,000 annually for 15 years for transportation costs and to a declaration
that the defendants violated her right under the Canadian Charter of Rights
and Freedoms (Jane Doe v. Board of Commissioners of Police for the Municipality of
Metropolitan Toronto et al., 1998).

Duty of Care to Prisoners

Police officers also have an obligation to protect the individuals that they arrest
or incarcerate while awaiting disposition. In the case of Funk v. Clapp (1988) a
prisoner had been arrested for impaired driving. As per procedure, the arresting
officer conducted a physical search of the suspect but failed to locate a belt that the
individual had hidden on his person. Eventually, the individual was lodged in a
cell in possession of his hidden belt. While in custody, the individual committed
suicide by hanging himself.

Law Enforcement Executive Forum • 2007 • 7(1) 39

When the incident went to trial, it was determined that the arresting officer had
not conducted the physical search in accordance with the requirements set out
in the police agency’s policy. In addition, it was also revealed that the prison
custodian did not regularly check on the prisoner as was required within policy.
Nonetheless, the Court dismissed the action finding that while these omissions
did occur they did not result in a breach of duty to take reasonable care for the
safety of the prisoner (Funk v. Clapp, 1988).

In the case of Gerstel v. Penticton City (1995), the plaintiff was arrested and placed
in custody, awaiting trial on criminal charges. The plaintiff had a history of mental
illness that included being diagnosed as suffering from schizophrenia with
symptoms of depression, illusions, and paranoia. Nonetheless, he was transferred
to a regular police holding cell with provisions made for frequent observational
checks.

Unfortunately, between two of the scheduled checks, the plaintiff became

delusional and climbed to the top of the cell bars. The plaintiff then dove head
first onto the concrete floor of the cell block sustaining injuries that rendered him
a quadriplegic. A subsequent civil action was launched against the police agency,
alleging negligence in regards to the duty imposed.

At trial, the judge dismissed the action against the agency stating that although
there is a duty of care to all prisoners in custody, that includes the use of reasonable
care to protect them from foreseeable risk; in this instance, the police did not depart
from the standard of care expected of them (Gerstel v. Penticton City, 1995).

Conclusion
In summary, it appears that Canadian courts have generally resisted finding that
police agencies have breached the expected standard of care owed to members of
the public. The reason for this may be due in part to the rapid and complex sequence
of events in which police personnel frequently find themselves. In many of these
precarious situations, it would be unreasonable to expect flawless decisionmaking
on the part of the police agency in regards to all of the circumstances at hand.

While the police have an expected duty of care to protect all individuals, their
duty is limited to protection from reasonable and foreseeable risk. By virtue of
their rulings, the courts have indicated that the plaintiff must demonstrate the
following:

• That the police owed a duty of care to the plaintiff

• That the police should have observed a particular standard of care in order to
perform or fulfill that duty
• That the police breached their duty of care by failing to fulfill or observe their
standard of care
• That such breach of duty caused damage or loss to the plaintiff
• That such damage was not too remote a consequence of the breach so as to
render the police not liable for its occurrence

40 Law Enforcement Executive Forum • 2007 • 7(1)

Importantly, there is a noticeable lack of judgments against Canadian police
agencies in both criminal and civil domains. In this regard, John Westwood,
Director of the Civil Liberties Association of British Columbia writes, . . .

. . . the police in Canada, by and large, see themselves as public servants, as

crime fighters answerable to the citizenry . . . public prosecutors are not afraid
to lay charges against the police when the evidence is there . . . the courts are
willing to find against the police. Of course, it is more difficult to convict a
police officer than it is an ordinary citizen or to get a civil judgment against
the police: When we allow the police to use force against us, we must allow
them some freedom from being second-guessed about their split-second
judgments. (Westwood, 1997, p. A23)

Noteworthy is that police officers in Canada and the United States are receiving
better training and more precise guidance by departmental policy and appear to
be making better decisions in the field regarding the usage of force than in the
past. In addition, both Canadian and U.S. police have more equipment options
at their disposal than in former years, which give them viable ranges of force to
utilize when encountering resistance.

In addition to these developments, the concern regarding negligence and liability

appears to have intensified professionalism within policing. As a result, Canadian
police agencies appear to have become more proactive in meeting the demands
and expectations of both the courts and the public. This approach is a departure
from past practices, which were largely reactive, often taking the form of policy
changes.

Bibliography
Parent, R. (1996). Aspects of police use of deadly force in British Columbia: The
phenomenon of victim-precipitated homicide. Unpublished master’s thesis, Simon
Fraser University, Burnaby, BC.

Parent, R. (2004). Aspects of police use of deadly force in North America: The phenomenon
of victim-precipitated homicide. Unpublished doctoral dissertation, Simon Fraser
University, Burnaby, BC.

Westwood, J. (1997, November 6). Want to get tough on crime? See Yugoslavia. The
Vancouver Sun, p. A23.

Legal Cases
Allarie v. Victoria City. Vancouver Registry No. 911792 (BCSC) (July 14, 1993).

Anderson v. Port Moody (City) Police Department, BCSC 1194 (2000).

Beim v. Goyer, Que. Q.B. 558 (sub nom. Gordon v. Montréal) (1964), 3 CCC 175
(sub nom. Gordon v. Goyer) (CA) (1965).

Berntt v. City of Vancouver, Vancouver Registry No. C945376 (April 5, 1997).

Law Enforcement Executive Forum • 2007 • 7(1) 41

Berntt v. The City of Vancouver et al., BCSC 1754 (2001).

Bottrell v. R., 22 C.R. (3d) 371, 60 C.C.C. (2d) 211 (BCCA, 981).

British Columbia Office of the Police Complaint Commissioner, File #PH99-01,

Vancouver, July 10, 2000 – Millward, Adjudicator.

Christopaterson v. Saanich (District), Victoria Registry No. 923026 (November 30,

1994).

Cluett v. R., 2 S.C.R. 216, 21 CCC (3d) 318 (1985).

Cook v. Lewis, SCR 830 (1951).

Cretzu v. Lines, 75 CCC 367 (BCSC) (1941) (Smith J.).

Davidson v. City of Vancouver, Vancouver Registry No. C842364/C842924

(June 19, 1986).

Fisher v. Ruislip - Northwood Urban District Council, 1 KB 584 (1944).

Funk v. Clapp, BCJ 2259 (CA, 1988).

Goulet v. R. and Gosselin, New Westminster Registry No. C860624 (BCCoCt)

(October 28, 1987).

Gerstel v. Penticton City, Vancouver Registry No. C893735 (BCSC) (July 11, 1995).

Jane Doe v. Board of Commissioners of Police for the Municipality of Metropolitan

Toronto et al. 39 O.R. (3d) 487 O.J. No. 2681 Court File No. 87-CQ21670 Ontario
Court (General Division) (1998).

Just v. B.C., 41 B.C.L.R. (2d) 350 at 354 (SCC, 1989).

Keeling v. Insurance Corporation of British Columbia, Vancouver Registry No.

C9545201 (July 5, 1997).

McIndoe v. Pasmen, B.C.J. #533, BCSC (1991).

Moore v. The Queen, 43 CCC (2d) 83 (1978).

Nault v. Tromblev, Nanaimo Registry No. 02312 (April 7, 1995).

Odhavji Estate v. Woodhouse, SCJ No. 74 (SCC, 2003).

Osman v. Ferguson, 4 All E.R. 344 (CA) 1993.

Priestman v. Colangelo, 19 D.L.R. (2d) 1 (SCC 1959).

R. v. O ’Donnell (1982). N.S.J. No. 542; 55 N.S.R. (2d) 6; 3 C.C.C. (3d) 333; 9 W.C.B.
42.

42 Law Enforcement Executive Forum • 2007 • 7(1)

Regina v. Bottrell, 22 C.R. (3d) 37a, 60 CCC (2d) 211 (BCCA 1981).

Regina v. Cluett, 2 S.C.R. 216, 21 CCC (3d) 318 (1983).

Regina v. Creighton, 83 CCC (3d) (1993).

Regina v. Deane, O.J. No. 403, (Ont. CA) 2000

Regina v. Faid, 2 CCC (3d) 513 (SCC, 1982).

Regina v. Gosset, 83 CCC (3d) 494 (SCC 1993).

Regina v. Hebert, 107 CCC (3d) 42 (SCC 1996).

Regina v. Letourneau, R.L. 84 (Que. SP 1971)

Regina v. Levert, O.J. No. 2627 (Ont. CA 1994)

Regina v. Lines, Ont. J. No. 3284, DRS 94-11919 (1993).

Regina v. Magiskan, O.J. No. 4490, Ontario Superior Court of Justice (2003).

Regina v. Melaragni, 76 CCC (3d) 78 (Ont. Gen. Div. 1992).

Regina v. Scopelliti, 63 CCC (2d) 481 (Ont. CA 1981).

Regina v. Zetourneau, R. L. 84 (Que. SP 1971).

Roberge v. The Queen, 4 CCC (3d) 305 (SCC 1983).

Robertson v. Joyce, 4 D.L.R. 436 (Ont. CA 1948).

Thomson v. Ontario, O.J. No. 3347, Ontario Superior Court of Justice (2001).

Wiche v. Ontario, O.J. No. 1850, Ontario Superior Court of Justice (2001).

Woodward v. Begbie, 132 CCC 145 (Ont. HC 1961) (McLennan J.).

Rick Parent, PhD, currently holds the rank of sergeant, and he is the manager
of research and academic development at the Justice Institute of British
Columbia Police Academy.

Simon Verdun-Jones, JSD, is a professor in the School of Criminology at

Simon Fraser University.

Law Enforcement Executive Forum • 2007 • 7(1) 43