Trust and Confidence – The Call for Police Reform (Part I)
Chief Danny Smyth
Introduction
Whenever the police are involved in a use-of-force encounter that results in a death or serious injury, the inevitable calls for police reform soon follow. From my perspective as a police leader, police reform is essential. It is a commitment to continuous improvement to ensure that policing meets the needs, values, and expectations of those we serve. However, depending on where you live, the call for reform can look very different.
There are many distinctions between policing in Canada and policing in the United States, yet many don’t know the differences. Qualified immunity is one of the issues that people feel need changing. It is also an issue poorly understood and not directly applicable in Canada. Our respective countries have different legal systems and different cultures.
The American Context - Qualified Immunity
Qualified immunity is a legal doctrine that is unique to the United States. It protects government officials, including law enforcement officers, from being held personally liable for actions they take during their duties. To successfully sue a government official, an individual must show that the official violated a “clearly established” constitutional or statutory right. If the right is not clearly established, the official is immune from liability, even if their actions were unconstitutional or otherwise illegal.
Qualified immunity is a judicially created doctrine that balances two vital interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. When determining whether a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that their conduct violated the individual’s rights.
Sometimes after examining both these elements, courts in the United States may well find a constitutional violation but still determine those involved receive qualified immunity because the law was not clearly established at the time. Brooks v. City of Seattle is an example of this: Seattle police officers were granted qualified immunity even though the courts agreed the use of force used against Ms. Brooks may have been excessive. This decision was made because the law was not sufficiently clear that every reasonable officer would have understood that their actions would violate Ms. Brook’s constitutional rights. In other words, the circumstances of the case law that the Courts considered when making their decision were not close enough to the circumstances of Ms. Brooks and the Seattle police officers. (More on this later).
Finding case law that is similar to your own circumstances has made it increasingly difficult for individuals to show that the law was clearly established. This has allowed some police officers to walk away without any consequences for poor or questionable conduct.
The Canadian Context – Statutory Protection
Qualified immunity is not a doctrine directly applicable to Canadian police and law enforcement officials. Instead, peace officers (which includes police and many other public officials) are afforded protection as a statutory right. Section 25(1)(b), (3), and (4) of the Criminal Code outlines these protections.
Section 25 allows police officers to carry out their duties, especially when people are non-compliant with laws or actively resist police trying to enforce laws. It’s what gives police the authority to arrest, use force, or search people or places. As long as the actions of the police are reasonable in the execution of their duty, they are protected.
This is not to say that police are immune from being charged criminally or sued civilly – far from it. In fact, in Hill v. Hamilton-Wentworth Police the Supreme Court rejected immunity for police in cases of investigative negligence. Police are not above the law or enabled to break the law, except where authorized in specific investigations under s. 25.1. Police officers in Canada are investigated for enforcement-related conduct – mainly when force is used that injures or causes death. However, the statutory protections under the Criminal Code provide a defence for officers subject to criminal or civil proceedings. The reasonableness of an officer’s actions allows courts and independent investigative units to make a determination of whether the officer’s actions were reasonable in the circumstances.
The Tale of Two Tasers
Seattle, Washington—Malaika Brooks was stopped by Seattle Police for speeding while she was driving in a school zone. She was seven months pregnant at the time of the traffic stop. She refused to sign the citation that the officers were trying to issue to her. After several warnings to no avail, the officers attempted to arrest her and remove her from the car. She resisted arrest. The situation escalated to a use of force encounter that saw the police officers deploy a taser and drive stun Brooks three times in quick succession on her thigh.
Afterwards, Brooks alleged the Seattle police officers had assaulted her and used excessive force during the encounter. She attempted to sue them in a civil proceeding. While the lower courts agreed that the force used may have been excessive and violated her constitutional rights, an appeal court rejected that her constitutional rights had been violated. The courts granted the officers qualified immunity, thus ending the civil proceeding.
Edmonton, Alberta—John Ferguson had been arrested during a domestic violence complaint. He was already handcuffed by other officers and on the ground thrashing about when Edmonton Police Constable Zalaski arrived on the scene. Concerned that Ferguson may be in a state of excited delirium, Zalaski used his taser to drive and stun Ferguson four times in a two-minute period to bring him under control.
Ferguson later complained to the Alberta Law Enforcement Review Board. Zalaski was charged with unlawful or unnecessary exercise of authority within the meaning of s. 5(e)(i) of the Police Service Regulation in that he applied inappropriate and excessive force to Ferguson. Initially, the Senior Officer who presided over the hearing determined that Zalaski’s conduct was not excessive. However, on appeal, the Alberta Law Enforcement Review Board determined the use of the taser in these circumstances was excessive. Zalaski appealed to the Alberta Court of Appeal to have the decision overturned but failed to make the section 25 defense argument. The decision of excessive force was upheld.
Key Differences
One of the most significant differences between American and Canadian law is that there is one Criminal Code in Canada. By contrast, in the United States, different states have their own criminal codes, which in some cases, differs from American federal criminal law. In Canada, the enforcement of the criminal code is the same throughout all provinces and territories.
One of the key differences between section 25 of the Criminal Code and qualified immunity is the scope of their application. Section 25 applies only to police officers and other law enforcement officials and only in the context of their duties. It does not provide immunity from liability, and officers can be held accountable for their actions if they use excessive force, are negligent in their duties or act outside the law. By contrast, qualified immunity applies to all government officials, including police officers, and covers a wide range of actions, including those taken outside the scope of their official duties. This means that even if an officer acts in bad faith or violates someone’s rights, they may be immune from liability if the right is not clearly established.
Another difference between the two legal doctrines is the standard of proof required to overcome them. In the regulatory context, this means that in Canada, if officers can establish that their use of force was reasonable and appropriate in the circumstances, they will not face disciplinary consequences. Under qualified immunity, the burden of proof is on the individual to show that the right that was violated was clearly established at the time of the officer’s actions. This can be a high bar to meet, and often individuals are unable to overcome it, even if they have strong evidence of wrongdoing.
Conclusion
Section 25 of the Criminal Code and qualified immunity in the United States are two legal concepts that are often thought to be similar. Both legal principles govern the conduct of law enforcement officers and provide protection against civil liability for their actions. However, there are important differences between the two legal doctrines, which reflect the different legal systems and cultures of the two countries.
Section 25 of the Criminal Code of Canada is a provision that allows police officers and other law enforcement officials to use force in the course of their duties, but only to the extent that it is necessary and proportionate to the circumstances. The provision sets out a number of factors that must be taken into account when assessing whether the use of force was reasonable, including the severity of the offence, the behaviour of the person being arrested, and the need to protect public safety. If a police officer uses force that is not necessary or proportionate, they may be found liable for an offence, such as assault.
Qualified immunity, on the other hand, is a legal doctrine that is unique to the United States. It provides protection to government officials, including law enforcement officers, from being held personally liable for actions they take in the course of their duties. In order for an individual to successfully sue a government official, they must show that the official violated a clearly established constitutional or statutory right. If the right is not clearly established, the official is immune from liability, even if their actions were unconstitutional or illegal.
Police accountability in Canada, though not perfect, is distinguishable from police accountability in the United States. The police reforms around qualified immunity that many in the United States have been demanding were formally addressed in Canada many years ago.