Quote:
Originally Posted by Bent Wookie
How bout I make a deal with you- grab a set a hand cuffs and 2 other buddies, then make a 4th buddy the 'arrestee'. Tell him resist while you three try and handcuff him.
He is resisting not being assaultive, thus you can't kick him in the face or fire elbow strikes to the back of his skull.
Remember there is a large crowd who appears sympathetic to the arrestee and video cameras watching your every move. There might even be media there.
Then remember sections 25 and 26 of the Criminal Code of Canada:
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.
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.
Things getting a little more thought provoking or is coming over the top turnbuckle with a big elbow smash still what would be best practice.
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BentWookie, it's ok to disagree without being a smug nubbin about it.
On point: things do get a little more interesting... especially since no one was advocating the big elbow smash to the face in lieu of getting tased.
Coachella was in the U.S., but I'll play along with the Criminal Code. In a recent decision of the Ontario Superior Court of Justice - R. v. Magiksan (2003), 19 C.R. (6th) 330 - the judge said the following about s. 26:
Quote:
24 However, section 26 of the Criminal Code provides that when peace officers are "authorized by law to use force" (as in the arrest situations referred to) they are "criminally responsible for any excess of the force used according to the nature and quality of the act that constitutes the excess".
25 In the result, although force likely to cause death or grievous bodily harm is permissible in the process of arrest described in section 25(4), that force must be reasonable and proportionate. A police officer who resorts to force which is excessive having regard to "the nature and quality of the act that constitutes the excess", is acting unlawfully.
26 It necessarily follows that it is a required element of both of the offences of assault police and obstruct police that the officers involved must, themselves, have been lawfully engaged in the execution of their duties at the time of the alleged assault and obstruction.
27 The nature and quality of the act that must be considered begins with the decision to use force of any kind in the first instance (s. 25(1)). Justification for that decision, once made, is limited by all of the circumstances that affect the "nature and quality of the act that constitutes the excess". Some such circumstances would include:
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the nature and seriousness of the offence for which the arrest is being made (one does not engage a bulldozer when a flyswatter is sufficient).
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the certitude of the fact of the offence which is the basis of the arrest having taken place (Persons are presumed to be innocent until proven guilty. The more that is known about the circumstances that establish guilt, the more thorough the inquiry, the more complete the objective evidence and the more reasonable the grounds upon which the arrest is made are important considerations which govern necessity and reasonableness).
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the need for detention as an aspect of intervention;
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the protection of the officers and other persons from violence;
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the prospect of flight/escape;
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the likelihood of continuation/resumption of offending conduct;
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the apparent physical condition of the person being arrested and/or alleged victims;
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police modules and training affecting the use of force;
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the prospect of escalation and retaliation;
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knowledge of the identity and access to the person to be arrested; (A person who is to be arrested does not, of necessity, have to be arrested at that time and place if use of force is contemplated when it is reasonable that this can be accomplished on another occasion without violence or with less violence.);
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the nature and extent of the force reasonably contemplated as likely to be necessary;
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other exigent circumstances.
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I take the decision to be saying a few things.
First, police have the right to restrain lawbreakers.
Second, and however, that right is restrained in a number of important ways:
(a) that force must be proportional and reasonable - i.e. must not be out of whack with the offence they are trying to prosecute.
(b) and, contrary to what you were saying earlier, police are in fact encouraged to use their discretion in assessing the appropriate force. Discretion, imo, is crucial and is what makes most police excellent and great at their job.
(c) and, last, the exercise of police force in such instances may be subject to scrutiny. Doesn't mean it will be punished, but it must be explained. Police cannot do what they like simply because you've broken the law (as suggested by another poster).
I don't think anyone really feels too bad for Wizard-dink. I think those of us questioning the tasing are wondering if it was really the most reasonable and proportional response to the situation. Maybe it's sanctioned by their operating manual... I have no idea. But it's certainly a right to be question their actions, even if they end up being justified.