Six Things You Should Know About Police Violence
By Joseph Fearon,
August 12, 2015

1. Police violence does not affect everyone in the same way

Some groups of people have more and worse interactions with police than others. In eastern Canada black people are more likely than other groups to be stopped by police and have negative interactions; in Western Canada the same applies to aboriginal people. These groups are not surprisingly also overrepresented in our jails and prisons.

Not everyone experiences individual police interactions in the same way. Our histories bring to bear how we perceive police officers. For people whose families and communities have experienced generations of racism and violence in Canada, the context and potential indignity of being stopped by the police is different and far more cutting. This might seem like a trite point, but it is a key piece to understanding most issues revolving around police violence.

2. The most common form of police violence is…

According to a recent report by Pivot Legal Society, a police dog injures someone in British Columbia every two days, making it the most common form of municipal police-related violence. This figure is likely low because the police-collected statistics do not include “accidental bites” or bites where non-suspects are bitten.

Many people experience serious injuries from police dog bites every year, particularly because of “bite and hold” tactics. In some cases, victims of police dog bites can start personal injury lawsuits against the police. But these types of lawsuits take time, money, and effort in order to prosecute and win. A key part of personal injury damages is compensation for lost income. Low income earners (who are most likely to be victims of police dog bites, says lawyer Douglas King) are therefore less likely to receive high awards.

According to King, who heads up the Accountable Policing Program with Pivot, small claims court is most often someone’s best option if they’ve been injured by a police dog. The lower potential damages in police dog bite cases coupled with the fact that many people will not want to take on the hassle of a lawsuit arguably provides less incentive for the police to change tactics.

It would be misplaced to blame police dogs for the amount of injuries they cause. The use of police dogs is not only a problem for humans. Using dogs as weapons raises legitimate animal rights concerns. We would get along just fine without police dogs. Like all animals, dogs are vulnerable and obviously could never consent to being used as weapons or put in danger for our benefit.

3. Private security

The use of private security officers has grown quickly in recent years. Many people turn to them as an added tool for protecting their private property in addition to whatever protect is already provided by the police.

Private security guards are citizens. They do not have special authority or legal powers like police officers. Their role is to patrol and protect private property based on rules set by the property owner. Guards do not have the authority to tell people to move along when on public property, for instance. The B.C. Human Rights Coalition has published a useful website explaining the limits of security guards’ powers. They explain that guards may only make citizen’s arrests:

"To make a citizen's arrest, a guard must witness a criminal offence on or in relation to the property which they are authorized to protect (for example breaking and entering or vandalism). They may also make a citizen's arrest if they see someone run from a person who has authority to make an arrest, such as a police officer."

Security guards have no authority to hold someone against their will unless that person is under arrest. They also have no greater authority to search someone than an ordinary citizen.

Even though security guards have limited powers, the growth of private security services brings with it its own set of potential problems. Security officers do not go through nearly the same sort of training as police officers. While police officers typically have degrees and are put through extensive training, security guards need only to complete approximately 40 hours of training to be licensed.

Security guards are also not regulated like the police. Some groups in the Downtown Eastside—in particular sex workers, says King—believe that they are unlawfully targeted and harassed by private security guards.

King says that it is difficult to get reliable data on security guards because unlike police officers they are not necessarily required to keep reports of violent altercations.

4. The police complaints process

If you have been a victim of police misconduct, then you can make a complaint to the Office of the Police Complaint Commissioner. The commissioner’s office will do an investigation into your complaint and you may request a public hearing. The police officer in question may be disciplined.

Many people believe that police are unable to fairly evaluate other police officers, in part due to the “blue code of silence” to not report on a colleague’s mistakes or misconducts.

A 2007 audit of the police complaints process found that one in three investigations into the use of excessive force had major errors or omissions that could have affected the end result. In other cases, complaints that warranted involving Crown prosecutors were not forwarded to Crown counsel to potentially lay charges against the police officer in question. A recent 2012 report found improvements but many believe the problem continues.

In his work with Pivot, King has found that people who start their own lawsuit—likely in small claims court—end up being more fulfilled than by making a complaint with the commissioner.

5. The law is slowly evolving

A Supreme Court of Canada decision from 2010 upheld an award of $5,000 to a local lawyer who was unlawfully strip-searched by the police. It was the first time that damages were awarded for a violation of the Charter of Rights and Freedoms.

This decision broke important legal ground for Canada, opening another avenue of redress for people who have had their rights violated by the police. According to King:

"The Charter has historically been an effective criminal defence tool for protecting people against police conduct, for instance with illegal search and seizures. But [Charter damages] allow people to take [the] offensive when rights are violated [to] get compensation. At the end of the day, what police misconduct is really about is your Charter rights. Charter damages go to the heart of police misconduct."

One problem with charter damages is that they are often quite small. Like minor personal injury claims, victims have barriers to accessing justice because the legal system can be complicated and expensive.

6. The role of class actions

Class actions offer a potentially useful tool for combating police violence. Class actions allow people to group their lawsuits together, leveraging the economies of scale. By working together people can significantly cut the cost of a lawsuit. The many small recoveries can end up being millions of dollars, which provides a strong incentive for lawyers to take on (and win!) class actions because their fee will usually be a portion of whatever they recover for their clients.

Class actions also have an important role in changing government and corporate policy. No government or company wants to be stuck paying a large class action judgment amount, let alone the legal costs of defending against one.

Class actions in the United States have targeted police misconduct with some success but it is still a relatively new tool in Canada. I spoke with Kent Elson, counsel for the G20 class action. The class action is the first of its kind in common law Canada. If successful, the government could be forced to pay millions of dollars in compensation for violating protesters’ rights during the protests of the 2010 G20 summit in Toronto.

The G20 class action concerns police tactics used during the protests, in particular the controversial “kettling” tactic where police encircle groups of protesters and prevent their escape, sometimes to make large-scale arrests. Many protesters faced awful conditions in detention centres before eventually being released with all charges dropped. Elson says that many people were psychologically scarred by the experience, shocked it could happen in a country like Canada.

Elson hopes that the G20 class action will have broader impacts on policing tactics during protests, especially in regards to kettling. This is one of the potential benefits of class actions, says Elson—class actions force the government to change by providing people with a remedy. Without a remedy, after all, the police have far less incentive to change policy.

Class actions have their limitations. In order to be certified as a class action, the subject of the individual wrongs must be closely tied together and associated with each other. In Thorburn v. British Columbia (Public Safety and Solicitor General), a class action seeking damages for routine strip searches by police, the court refused to certify the class because the individual circumstances of each person involved needed to be reviewed, making it unsuitable for a class proceeding. This case was a sober reminder of the limits of class action lawsuits.

The reality is that it is difficult for victims to seek remedies for police misconduct, particularly when a class action is not appropriate. The difficulties getting redress merit asking whether a legal right without a remedy is even a right at all.

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This article should not be relied upon as legal advice - the comments may not be applicable to you and may not be up to date. If you have any questions, you should contact a lawyer.