Newsgroups: tor.general
Path: utzoo!lsuc!sean
From: sean@lsuc.uucp (Sean Doran the Younger)
Subject: Re: Toronto Police
Keywords: Presumption of Innocence & "Criminals"
Reply-To: sean@lsuc.UUCP (Sean Doran the Younger)
Date: Fri, 20-Jan-89 20:16:47 EST
Summary: Re: Condemnation any earlier is baseless conjecture...
Message-ID: <1989Jan20.201648.20385@lsuc.uucp>
Distribution: tor
References: <157@aimed.UUCP> <4674@hcr.UUCP>
Organization: Law Society of Upper Canada, Toronto

In article <4674@hcr.UUCP> paulg@hcrvax.UUCP (Paul Gooderham) wrote:
>
> - a knife weilding man rushes a policeman who then shoots the man.  
>
> - the youthful driver of a known stolen car tries to run down two 
>   policemen and ends up shot
>
>In both these cases currently popular in the press, the criminal 
>is trying to kill the policeman and the policeman strikes back.

In both cases, there is no criminal.   The Presumption of Innocence
(Section 2 (f) of Part I of the Canadian Charter of Rights and Freedoms
and Section 11 (d) of Schedule B of the Constitution Act, 1982)
should be granted to both the victims in both cases, and it is unwise
to call them criminals.   Moreover, it is even less wise to point out
that (referring to the police constables involved) 'Condemnation
any earlier is baseless conjecture', while still labelling and thus
condemning the two dead men as criminals.

It is my understanding of the Police Act and departmental and ministerial
directives that police guns may not be removed from the holster or
belt unless a person is threatening the PC or another person with
a brandished gun, or unless the PC has reasonable grounds to believe
that a person is carrying a concealed gun.   Police revolvers and other
guns are not to be displayed in order to threaten any person, nor
to restrain an arrested person who is unarmed.   

Moreover, the police are not to discharge firearms unless acting
in self defence and in accordance with the other regulations concerning
police guns.   They are certainly not allowed to shoot at someone
brandishing a knife (Police Constables are well trained in the use
of truncheons and are all taught how to disarm an opponent who is
using a knife or other weapon), nor are they allowed to fatally
wound any person for any reason with impunity from the courts.  

Common law is very clear on claiming self-defence as a means of
establishing no mens rea in cases of battery and related crimes,
as well as manslaughter.   One can take no self-defensive action
after the immediate threat to one's life and safety has ended.
According to the testimonies offered at the Police Hearing,
the car driver had been shot through the head from directly behind,
while the car was moving forward very quickly.  It is highly unlikely
that any claim to self-defence can be made taking into consideration
that the immediate risks to the PCs' lives and to any bystanders'
safety had passed -- it is difficult not to conclude that the driver
of the motor car had been retreating from the scene of the crime.

I fear that unless the PCs involved have another defence, or unless
evidence not presented to the Police Hearing is offered to the
court trial, the charge of manslaughter will be upheld.   I hope,
however, that the pressure and stress of being nearly run down
and the consequent difficulty in judging the actions of the
driver will be taken into consideration by the court if and when
the court publishes a sentence against the P.C. charged.

>People seem to expect policemen to risk injury or even death
>for the sake of a criminal.

If you mean 'for the sake of an alleged criminal', or 'for the
sake of an accused person', or even 'for the sake of a person
caught while committing an indictable offence', then
Correct: see 2 (f) of Part I of the Charter of Rights and Freedoms,
and 7-11 of Part I of Schedule B of the Constitution Act (1982).

Moreover, the various regulations and statutes concerning the police
as well various Common law precedents make it clear that even a
convicted criminal deserves protection from the police, even if
such protection may entail a risk to life or safety of the police
involved.

It would be quite ghastly to expect a Police Constable who is being
assaulted or attacked not to defend himself or herself.   Self-defence,
however, can only excuse crime if the force used in self-defence
is reasonable.   Physical forced used against verbal assault is
unreasonable.   Disarming someone by breaking an arm, wrist or hand
(i.e., committing the offence of wounding in order to prevent
the offence of battery) is not considered reasonable.   Using a gun
on someone brandishing a knife has also been deemed in court as
using unreasonable force.   Using ANY force on a retreating opponent
(i.e., retribution) is NEVER considered reasonable force.   No police
constable or officer can use more force than is reasonable, even
to subdue an unruly or dangerous suspect or someone who is actively
resisting arrest -- under pain of reprimand, suspension, or dismissal
and of course the civil suit.


  
>But if the men had just followed 
>police instructions, they would be alive to whine for themselves 
>today.

If the Police had followed proper procedure, and behaved in a lawful
and professional manner, the two victims would be alive to-day,
and both would probably soon find themselves in a very nasty
prison after being charged and found guilty of attempted murder
or at least assault with a deadly weapon.


>I wouldn't argue against investigations intended to uncover the
>truth, but I wouldn't condem the policemen until the truth that
>they did something wrong was known.  

The Police hearings established that there is evidence of
impropriety on the part of the P.C.s involved.   The Attorney-General's
Department have decided that the evidence is enough to proceed to
a full criminal trial.   That they did something wrong (killing anyone
is not allowed in any situation) is clear.   That they did something
unlawful cannot be known until verdicts are published.


>Condemnation any earlier is
>baseless conjecture but the press seems to gobble it up.  Anything
>to sell more papers or to get better ratings, I suppose.

Conjecture is often not entirely baseless.   There are evidence in
loads and court documents readily available to anyone, even journalists.
Whether the journalists can be accused of sensationalising for the
purpose depends upon a value judgement based upon personal tastes --
there are no set standards defining good reporting and sensationalism,
but as with pornography, one can recognise it when one sees it.
For my part, I think that in this rare case, the press and other media
have behaved quite reasonably considering the possibilities open
for exploitation.   It is when allegations of racism are made in
editorials and by hired reporters that I shall change my mind.


(Nota bene: I am not a Lawyer of any sort and have no plans to be one.)
-----------
Sean Doran the Younger  <sean@lsuc.UUCP> | Using the Law Society's computer
a/s The Law Society of Upper Canada      | does not mean I use their opinions.
    Computer Education Facility          | However, all those barristers and
    Osgoode Hall, Toronto, Canada        | solicitors would come in very handy
lsuc!sean@gpu.utcs.toronto.edu           | if someone decided to sue me.
{uunet!attcan mnetor att pyramid!utai utgpu utcsri utzoo ncrcan}!lsuc!sean
-- 
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