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Difference between revisions of "Complaints Concerning Police Conduct (5:V)"
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Complaints Concerning Police Conduct (5:V) (view source)
Revision as of 22:13, 17 May 2016
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*b) is designated as a public officer for the purposes of sections 25.1 to 25.4 by the competent authority (the Solicitor General of Canada in the case of RCMP officers; the provincial Minister responsible for policing in the case of police forces constituted under provincial laws); and | *b) is designated as a public officer for the purposes of sections 25.1 to 25.4 by the competent authority (the Solicitor General of Canada in the case of RCMP officers; the provincial Minister responsible for policing in the case of police forces constituted under provincial laws); and | ||
*c) believes on reasonable grounds that committing the act or omission, given the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances. | *c) believes on reasonable grounds that committing the act or omission, given the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances. | ||
In deciding whether the officer's act or omission is reasonable and proportional, and therefore justifiable, the courts will look at the nature of the act or omission, the nature of the investigation, and the reasonable availability of other means for carrying out the public officer’s law enforcement duties. | |||
If the public officer’s act or omission is likely to cause loss or serious damage to property, the public officer would need authorization from a senior law enforcement official who believes on reasonable grounds that the act or omission is reasonable and proportional. | |||
However, these provisions do not permit officers to cause death or bodily harm to another person either intentionally or through criminal negligence, nor do they justify conduct that violates someone’s sexual integrity. | |||
Students should consult the ''Criminal Code'' (sections 25.1 to 25.4) for further details on the limited criminal liability of public officers. | |||
Typically speaking, the only time a police officer will be charged is either if an internal investigation is launched, or a police complaint is filed and during the course of that investigation charges are recommended. | |||
=== 2. Civil Proceedings === | |||
Clients may be able to sue police officers civilly, even when they have also made a complaint. Section 179 of the BC ''Police Act'' specifically states that the complaint proceedings outlined above do not preclude a citizen from taking, or continuing, civil or criminal proceedings against an RCMP officer or a municipal constable for misconduct. Outside of BC, the Supreme Court of Canada ruled in ''Penner v Niagara (Regional Police Services Board)'', 2013 SCC 19, that the result of the police complaint process calls for a case-by-case review of the circumstances to determine whether it would be unfair or unjust to prevent further litigation. | |||
Typical actions that are launched against peace officers include tort actions in assault, battery, false imprisonment, or malicious prosecution. This could be helpful to clients who have been mistreated or suffered monetary loss because of police misconduct. These actions may now be brought in Small Claims Court. | |||
When suing the police, the complainant would usually want to sue both the police officer and his or her employer (see ss 11 and 20 of the Police Act). For a municipal police force this is the municipality; for the RCMP it is the Minister of Justice of British Columbia. | |||
EXAMPLE: An action brought by a complainant named John Smith could read “John Smith vs City of Vancouver, Constable Jane Doe, and Constable Richard Roe.”If the complaint is against a municipal police force, special limitation periods apply. The municipality must be informed by letter of intent to sue within 60 days (NOTE: filing a police complaint does not constitute notifying the municipality), and the notice of claim should be filed within 2 years (see Gringmuth v The Corporation of the District of North Vancouver,2002 BCCA 61). The regular Small Claims Court limitation periods apply if you are suing the RCMP or a private security guard. NOTE: Even if a complainant has not sent a letter of intent to the municipal government, the municipal government should still be named as a party. At trial, the claimant can argue they had a reasonable excuse for failing to deliver a letter of intent to the city, and that the municipality has not been prejudiced by the failure to write the letter. | |||
5-27NOTE: Even if the 60 day limitation period has expired, a complainant should still send a letter of intent to the Clerk. If the municipality was provided with notice shortly after the 60 day period expired, it will be more difficult for them to argue that they were prejudiced by the failure to send the notice letter within 60 days. NOTE: If a municipal government or Minister of Justice is willing to accept liability on behalf of its officers where liability is proven, they may ask that the individual officers’ names to be removed from the lawsuit. While there may be reasons to keep the individual officers on the lawsuit, if the court finds they were left on unnecessarily, costs may be awarded against the client. Both municipal police and RCMP officers are partially immune from civil liability under subsection 21(2) of the Police Act. However, paragraph 21(3)(a) provides that this defence does not apply if the police officer has “been guilty of dishonesty, gross negligence or malicious or wilful misconduct”. In Ward v British Columbia, 2010 SCC 27, it was held that intentional torts do not qualify as wilful misconduct for the purposes of subparagraph 21(3)(a). As a result of this, it is even more important to make sure the case starts within 6 months. Please be sure to read the paragraph about civil proceedings if the client is considering suing the police because special limitation periods apply. For detailed step-by-step information on suing the police (as well as private security guards), please see David Eby & Emily Rix, How to Sue the Police and Private Security in Small Claims Court (Vancouver: Pivot Legal Society, 2007). | |||
p. 5-24 | p. 5-24 | ||