Resistance is futile in arrest

Yes, you have the right to resist an unlawful arrest. But doing so is not an advisable way to enforce your rights!

One problem is that you have no way of knowing, at the time of an arrest, whether or not it is lawful.

A police officer might have reasonable grounds to make an arrest even if you’re “squeaky clean” innocent of any wrongdoing.

The officer in the case I wrote about last week (Joseph v. Meier, 2020 BCSC 778) was investigating Ms. Joseph for shoplifting. Had a store employee told the officer they witnessed Ms. Joseph slipping an item in her bag, the officer would have had reasonable grounds to make the arrest even if the store employee had been mistaken.

Resisting a lawful arrest is a criminal offence, even if you’re innocent.

A more significant problem is the practical matter that “resistance is futile” when it comes to the police. There is no “rights angel” that will step in and stop the police from acting unlawfully. If they are intent on arresting you, they will. It doesn’t matter how big, well trained in fighting, or armed you are. The more you resist, the more likely you will be hurt or even killed.

If it turns out later that the arrest was unlawful, as it did for Ms. Joseph, you can pursue compensation for your injuries and losses. But compensation under our law just balances out your losses. There’s no bonus. And just like Ms. Joseph, you’re likely to need a lawyer to get that compensation. The significant fees you pay to your lawyer will leave you undercompensated.

And “I’m glad I was hurt so that I could get compensation” was said by no client of mine, ever.

So are your rights meaningless? How else do you enforce your right not to be unlawfully arrested, besides resisting that arrest? If you submit to the arrest and the police search your bag, haven’t your rights already fluttered away?

Your rights are not meaningless.

The Charter of Rights and Freedoms includes an enforcement mechanism. Section 24(1) states:  “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

An unlawful arrest is a breach of your right under Section 9 of the Charter “not to be arbitrarily detained or imprisoned.”

And if your bag is searched as part of an unlawful arrest, as was the case with Ms. Joseph, that’s a breach of your right under Section 8 “to be secure against unreasonable search or seizure.”

The police officer’s lawyer minimized the Charter breaches. They argued that the search of her purse and phone was brief and the items were returned to her within minutes. They noted that she was detained only a brief period of time and released at the scene.

The court quoted from an authority from the Supreme Court of Canada that an award of damages (money) for a Charter breach might be appropriate to fulfil one or more of three functions, i.e. “compensation, vindication of the right, and/or deterrence of future breaches.”

Compensation for loss arising from those breaches was not appropriate because Ms. Joseph had already been awarded compensation for her injuries and losses. For the important functions of vindication of the right and deterrence of future breaches, Ms. Joseph was awarded $5,000.

A deterrent is important. Next week I will discuss why, and whether or not the amounts being awarded for Charter breaches are meaningful deterrents.


Can you legally resist arrest?

A police officer approaches you as you leave a clothing store, wanting to talk to you. They say they think you have some things in your bag that you didn’t pay for. You decline and try to keep walking. They try to cuff you but you resist, turning away and clasping your hands together. The police officer forces the issue and you are injured in a scuffle.

You might ask yourself: “Self, why am I such an idiot?”

Surely you must comply if a police officer approaches asking to speak with you. Failure to do so would be a crime in itself, which police officers refer to as “obstructing justice.”

And if you resist their attempt to arrest you, that’s another crime that they refer to as “resisting arrest.”

It’s your own fault if you are hurt when the police officer forces the issue. As long as they use reasonable force, of course.

Borrowing a saying I recently learned: “Do bad things and you win bad prizes.”

But might you be perfectly within your rights to keep walking? And might it be lawful to resist an arrest? What then? Do you have any recourse against the police?

Madam Justice B.J. Brown answers those questions in her recent court decision of Joseph v. Meier, 2020 BCSC 778.

Irene Joseph was a 61-year-old with a fused left ankle and various chronic medical complaints, including chronic pain. She used a walker for mobility.

She had been shopping in a clothing store.

The store manager saw a young woman, who Ms. Joseph had been talking to, put a scarf into her bag. When confronted, the young woman pulled out the scarf, threw it down, and ran from the store. Ms. Joseph was not seen putting anything into her bag.

The police were called.

When the police officer attended, he talked to the store manager. According to the police officer, the store manager told him she felt that Ms. Joseph might have concealed something in her bag.

The police officer waited until Ms. Joseph completed her purchases. He told her as she was leaving the store that he wanted to talk to her. Ms. Joseph wouldn’t stop, saying she had done nothing wrong. The police officer decided to handcuff her, but she resisted, turning away and holding her hands clasped in front of her.

The officer decided to take her to the ground where Ms. Joseph continued to resist. She was laying on her stomach, hands clasped in front of her, the police officer struggling to pull her arms out to cuff them.

The officer finally decided to stop trying to cuff Ms. Joseph, got up off of her and helped her to her feet. He then searched her belongings and cellphone. There was no stolen merchandise.

Ms. Joseph had been injured in the struggle and brought a lawsuit pursuing fair compensation for her injuries and losses.

Madam Justice Brown reviewed the law.

The Criminal Code provides that a police officer acting on reasonable grounds in the enforcement of the law is justified in using as much force as is necessary.

Madam Justice Brown noted the clear law that it is not enough for the police officer to believe they have reasonable grounds. The grounds they rely on must objectively be reasonable.

The store manager’s suspicion that an offence might have been committed was not enough. Madam Justice Brown noted: “A mere suspicion does not provide reasonable grounds to arrest.”

The police officer pointed to Ms. Joseph’s suspicious behaviour in refusing to provide her name and refusing to permit him to search her bag.

Madam Justice Brown reviewed the law about a person’s obligation to stop and talk to the police.

She quoted from another case: “Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless . . . [he] arrests him . . . ."

Without objectively reasonable grounds to believe Ms. Joseph had committed a theft, the police officer could not lawfully arrest her.

In legal terms, the police officer had committed the civil wrongs of false arrest, false imprisonment (restricting Ms. Joseph’s movement) and assault and battery.

The police officer was found liable to pay fair and reasonable financial compensation for Ms. Joseph’s injuries and losses.

What if Ms. Joseph had not resisted the arrest. Would she have had any resource for the unlawful arrest even though she had not sustained any injury? What about the invasion of her privacy in the search of her bag?

Or would the unlawful police actions have been without recourse?

The case also addressed those questions, which I will review in another column.

Does Canada have a police brutality problem?

On use of force by police

Recent videos of what appears (to the untrained eye) to be police brutality raises questions about what our rights are and how we might enforce them.

We looked down our noses at our southern neighbours after seeing the killing of George Floyd by a Minneapolis police officer who knelt on his neck for more than eight minutes.

But within days we had an ice water awakening with three “made in Canada” videos of events occurring over the span of two weeks:

And to top things off, the release of a video of the brutal police assault of a First Nations chief that had occurred in March, 2020

I don’t intend to demonize police.

We task them to “enforce” the law, which regularly requires the use of force. And puts them in harm’s way.

Statistics Canada tells us that there were more than two million Criminal Code violations in Canada in 2018 (the latest year they have published data). I got that from this link. Of those, more than 400,000 were violent crimes.

I’ve never done police work. And I’ve (thankfully) been part of only an exquisitely small number of physical altercations. But it seems to me that making spur of the moment use of force choices when arresting someone who is resisting might be very challenging.

Especially when drugs are involved, which I’m guessing is a lot if not most of the time.

Complexity increases when more than one officer is involved. An arrest is not like football, with its scripted plays. I suppose that in the melee, one officer might not realize a suspect is already effectively controlled and start unnecessarily pounding their face. Easy to see in hindsight, but not in the fray of it.

Use too much force and you seriously hurt or kill the person being arrested. Use too little and you put yourself, fellow officers, bystanders and potentially the person arrested at risk.

We don’t get to see the thousand or so arrests every day of violent criminals our police are protecting us from. The prevalence of surveillance and cellphone video cameras has us seeing only some of the most shocking ones.

It’s easy, from the safety and comfort of our homes, with the benefit of 20/20 hindsight and lacking experience and training in use of force protocols, to judge police action as we recoil in horror.

I have done so as well, and posted these videos on social media with expressions of incredulity.

But have I, and others who have done the same, been fair?

Do we have a police brutality (the use of excessive and/or unnecessary force) problem in Canada?

We know that we have a racism problem in Canada. A problem that our prime minster has acknowledged permeates every institution, including the police. I am not intending to distract us from that important focus.

But what about a police brutality problem? Are these shocking videos an indication that a review and overhaul of the use of force in policing is overdue, particularly in light of increases in drug use where a battering ram approach might not be ideal to gain control over or the cooperation of a vulnerable individual?

I feel that we owe it to everyone, especially our police officers who put themselves in harm’s way, to proceed with such a review. Regardless of the outcome, everyone will benefit from a greater understanding. And with that greater understanding, a rebuilding of trust that is so very important. And for the most part so very much deserved.

Next week, I intend to review our rights in our encounters with police, and civil remedies when the police overstep their lawful authority. I will be reviewing a recently released court decision where a senior was awarded compensation for false arrest, false imprisonment, and assault and battery at the hands of an RCMP officer.

Fooled by propaganda

A viral video slamming George Floyd and denying racially profiled police violence against black people came across my Facebook feed on the weekend.

It was a selfie video by a passionate and articulate young black woman, Candace Owens.

I am embarrassed to admit that I found myself initially drawn into what she had to say. Sickeningly so, because with all my limitations (of which there are many!) I consider myself at the upper half of the enlightenment, critical thinking and intelligence curves. 

If I was finding myself even remotely thinking in the direction she was steering me, what hope do we have changing the hearts and minds of those for whom her words are long established and entrenched truths?

The foundation of her presentation was demonizing Mr. Floyd as a doer of bad things. She used a catchy phrase, that, “Doing bad things wins bad prizes.”

She reviewed his criminal record consisting of several drug, theft and gun-related convictions. And put considerable emphasis on one offence that included Mr. Floyd pointing a gun at a pregnant woman's belly, which of course makes every right-thinking person cringe. She noted that according to toxicology reports he was high on fentanyl and meth at the time of his arrest for attempting to pass a phoney $20 bill.

She denounced the police officer’s conduct. But accounted for it on the basis that there are bad people in every profession.

She held up medical doctors as an analogy. Medical doctors are among the most trusted of professionals. According to her statistics, a large number of people are killed every year because of mistakes made by doctors. And some doctors actually kill on purpose.

That police officer wasn’t racist. He was a bad cop. Just like there are some bad doctors, there are also some bad cops.

The more encounters you have with the police, the more likely you will come up against a bad officer. The more pulls on the slot machine, the more likely you end up a winner.

Black people win more bad prizes because they do more bad things.

Her solution is for black people to do better. And she points to brilliantly successful black people as examples.

It’s easy to blame the least successful in our society, particularly those addicted to drugs and alcohol, and those with criminal records, as authors of their own misfortune. It seems that it would take the very lowest level of “good choices” to steer clear of that.

It’s easy to blame those who are less successful, generally. We have a general belief that anything can be accomplished in life as long as we try hard enough.

But by doing so, we ignore the reality and effect of systemic racism.

A friend had posted a comment in response to the video that included an analogy of two people writing an exam but giving only one of them a pencil to complete the task. And then frowning upon and reprimanding the one without the pencil for their lack of success.

It doesn't help to tell the one without the pencil to "do better."

But the pencil analogy works only if we start from a point of acknowledging systemic racism.

And we don't! Oh my goodness, we don't! Within the last weeks I have sat down with people in my relatively small circle who don't get it.

Everyone would "get" the pencil analogy if we were comparing the success rate of a newly released black slave with a member of white establishment. But slavery was abolished a century and a half ago. People of all cultural backgrounds are seemingly born in the same hospitals, going to the same schools and having the same opportunities.

We have enough trouble "getting it" when it comes to systemic racism faced by our native population, and the last residential school was closed less than 25 years ago.

If each of us had a deep understanding of the reality of systemic discrimination, we would never blame its victims. Instead, we would feel compassion and be motivated to help protect and raise them up. We would be motivated to work hard to eliminate it from our own hearts and minds, and from the hearts and minds of others.

What can be done to help us “get it”?

It is incredibly difficult to change biases and belief systems.

Education helps. Particularly at the level of the most impressionable of us, i.e. our children. Adjustments to our children's school curricula is a start, but any enlightenment of our children will be constricted by the established ignorance of our children's parents and the many other influences in their lives.

How do we enlighten and educate those not in schools?  

Perhaps we use the same tools tobacco companies used to convinced us to kill ourselves with cigarettes. And that Coca-Cola has used to convinced me to pay for and put several litres of coloured, aspartame laden liquid through my body every week.

Cleverly and creatively conceived of advertising/propaganda.

Might that be the most meaningful step forward to achieve "truth and reconciliation" with our native population?  Open recognition of the gross extent of our societal ignorance and identifying ways to best educate/enlighten?

And putting our money where our mouth is, i.e. putting resources into that education/enlightenment? 

How about we go after systemic racism at the source, i.e. the hearts and minds of our society. And figure out how to maintain our principles of free speech while eliminating the trash advertising/propaganda pulling us in the wrong direction, such as the Candace Owen video.

More Achieving Justice articles

About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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