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 | 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 -- -