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What Happens When A Peace Officer Is Charged With Assault?

By: James M. Lutz, Q.C. & Jillian Williamson

Our firm recently represented an Alberta Sheriff who works in a correctional facility (prison/jail) who was alleged to have committed an assault on a detainee.

Defending police and peace officers charged with criminal assault can be complex. The prosecutor is often working under immense pressure with this type of alleged crime.

There are several potential defences that must be carefully analyzed and compared with the facts as alleged. Once this strategic step is done, your lawyer must choose the best viable defence or defence(s) and press the matter in order to obtain the best result. That’s what Jillian and I did for our client.

It was alleged that he committed criminal assault upon a detainee in the execution of his duties. Our client had several defences available, including his own employment policies and procedures. However, in this case we built this defence via section 25 of the Criminal Code. This provision gives certain powers but also places limitations on the use of force by peace officers. It states:

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.

25(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

25(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if:

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;

(c) the person to be arrested takes flight to avoid arrest;

(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(e) the flight cannot be prevented by reasonable means in a less violent manner.

Jillian and I relied on this provision as well as several judicial decisions that have interpreted this decision and pressed on to trial. The prosecutor had previously offered a “deal” to allow my client to plead guilty to a lessor charge and therefore receive a lessor penalty. We rejected this offer. At trial, the prosecutor had a difficulty with calling her evidence mostly due to the strategic steps I took for my client. The judge found him not guilty.

This case demonstrates the complexities of defending police and peace officers. Crown prosecutors are under extreme pressure. There are several potential defences available. Your lawyer must have experience in analyzing the available defences as well as the facts as alleged in order to build the best defence possible.

Police and peace officers who are alleged to have committed an offence either in the execution of their duties or not face devasting life impacts as a result. You need a serious lawyer who defends serious allegations every single day. Contact Ross Lutz Barristers to have the best defence available.