Tens of thousands of people have hit the streets across the county in response to the horrific choking death of George Floyd by the knee of Minnesota police officer Derek Chauvin, Toronto police involvement in the death of Black-Indigenous woman Regis Korchinski-Paquet and so many other racialized people who have been the victim of disproportionate killing by police. There is a strong push for systemic change and calls to defund and disarm the police and to give the money to communities, including in Halifax.
Police are often assumed to be a fundamental part of a functioning society, but they are not. They are nothing more than a legal creation with a lot of funding to carry out their operations, just like corporations. They have a set of powers, which makes them police: the authority to inflict serious bodily harm or death, carry lethal weapons, detain, arrest and search. There are layers to these powers to unpeel. I am only going to focus on one aspect: their power and discretion to inflict serious bodily harm and lethal force, which is the legal source of their disproportionate brutality and killing of Black, Indigenous and other racialized people.
Anti-Black and Anti-Indigenous racism is a deeply rooted, systemic crisis in Canada, in which police killings are the most severe consequence. Police have demonstrated a gross abuse of their power, in targeting particularly Black and Indigenous people, and with deadly violence.
In 2018, the Ontario Human Rights Commission reported that a Black person is 20 times more likely to be killed by police than a white person. In April of this year, three Indigenous people were killed by Winnipeg police in just 10 days. Another Indigenous woman, Chantel Moore, was killed by New Brunswick police on June 4 during a wellness check on her. To state the obvious, the matter does not just rise to an injustice when police racism results in death. In Nova Scotia, Santina Rao was racially profiled by Walmart security in early 2020. The incident resulted in her being surrounded by six armed police officers in addition to security guards who accused her of shoplifting, then she suffered injuries as they violently arrested her. The prosecution refused to drop the charges despite many expressing concerns of their unlawfulness.
The police have legal authority to use violence, including deadly force, in specific circumstances. This is what many refer to as the licence to kill. Under section 25(3) of the Criminal Code of Canada (Code), a police officer is justified in using “force that is intended or is likely to cause death or grievous bodily harm” to someone they are arresting if the officer:
… believes on reasonable grounds that it is necessary for the self-preservation (the officer) or the preservation of any one under the (the officer’s) protection from death or grievous bodily harm.
Under section 25(4) of the Code, a police officer is justified in using force that is intended or is likely to cause death or grievous bodily harm of a person to be arrested if (paraphrasing):
- The officer has lawful authority to make an arrest for any criminal offence that is ongoing, just transpired or for any indictable offence (more serious) after the fact;
- If the person is trying to evade arrest;
- Officers have reasonable grounds to believe that the force is necessary to protect themselves or the public from present or future death or serious bodily harm;
- The evasion of arrest cannot be prevented by reasonable means in a less violent manner.
Police have an enormous amount of discretion under section 25 of the Code, which works in conjunction with validation from courts. In Nasogaluak, the Supreme Court of Canada majority said:
 Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]
This is the key: when police decide to use force to cause grievous bodily harm or death, they will almost always be found justified. Add a racial bias to their decisions and the result is a disproportionate killing of Black, Indigenous and racialized people.
In addition to section 25 of the Code, police can also use the law of self-defence under section 34 of the Code, which requires that the defence is proportionate to an attack or perceived attack. It is largely redundant of the power under section 25. Technically, anyone has this defence available. Police can call upon this defence in cases where a person is perceived by them to be attacking them. Interestingly, section 34 of the Code treats self-defence by police in the same manner as for a civilian, despite their training, lethal tools, the presence of other officers assisting them, if the would-be assailant does not have a firearm and if the police are initiating the interactions.
The power of police to carry and use firearms under the Firearms Act and under section 117 of the Code adds a further dimension to the arsenal of legally-authorized, discretionary violence. Disarming the police does not just mean taking away guns or other weapons, but taking away police power to inflict death, including by lethal chokes of deadly beatings. The guns, however, are the major tool use used in the infliction of deadly force. Police have the power to carry firearms under the Firearms Act and under section 117 of the Code.
Discretion should also been seen as power. Police are provided with enormous power through the Code and Firearms Act, and through the lens of racial bias, this power has led to a growing litany deadly consequences for Black, Indigenous and other racialized people.
Due to the enormous discretion and latitude police are given to inflict death and serious bodily harm in the course of their duties, they are very rarely even charged for killing people in the course of their duties. As a result, there is very little recent case law on the criminal law power of police to kill. Even the case of Andrew Loku, a Black Man in Toronto living with mental illness, wielding only a hammer, and shot dead by police in July 2015, did not result in charges. The case of Sammy Yatim, a young, Brown man killed on a streetcar by Toronto police officer Jason Forcillo on July 27, 2013, is one of the rare cases where an officer was charged and convicted–though not for actually killing him. It provides a good demonstration of the gross power held by police through their licence to kill and carry firearms. Yatim had a switchblade and was suffering from a mental distress. When Forcillo and other officers arrived, the streetcar was empty, as everyone had cleared away from the vehicle. Police did not try and take Yatim down through non-lethal means. Forcillo shot him nine times, and Yatim was also tazered, but his gunshot wounds were fatal before the final shots or shocks. The Ontario Court of Appeal summarized the findings at trial, which they upheld:
 The appellant testified and acknowledged that he shot and killed Mr. Yatim. He claimed that the shooting was justified under either s. 25 (lawful use of force) or s. 34 (self-defence) of the Criminal Code.
 The trial was hard fought. The jury returned verdicts of not guilty of second degree murder on count one, and guilty of attempted murder on count two. The verdicts indicate that the Crown had failed to prove beyond a reasonable doubt that the first volley of shots was not justified under either s. 25 or s. 34, but had proved beyond a reasonable doubt that neither defence applied in respect of the second volley of shots.
 The combination of verdicts returned by the jury presents an unusual, if not unique, result. The appellant stands acquitted of murdering Mr. Yatim and he stands convicted of attempting to murder Mr. Yatim, some 5.5 seconds later. In effect, the appellant has been convicted of attempting to murder the very same person he was found to have justifiably fatally shot just 5.5 seconds earlier.
This reveals how easily police discretion to use deadly force can be abused. Forcillo was found not guilty during the first volley of shots that actually killed Yatim because his use of deadly force was considered justified under sections 25 and 34 of the Code. In other words, his decision was considered reasonable. There are many reasonable ways that the situation could have been de-escalated, none involving drawing a firearm as an introduction. But Forcillo did exactly that, immediately drawing his gun, escalating the situation, firing a barrage of shots, and the ordeal ended with Yatim dead.
When police are provided the discretion to use deadly force, we see the systemic biases in society play out in deadly ways. Due to a history of systemic racism and stereotyping, Black, Indigenous and other racialized people are falsely perceived as more threatening and violent. It is well documented that racially-biased perceptions of threats are connected to police killings. Police will be able to keep killing Black, Indigenous and other racialized people with gross disproportion while the false perception of heightened threat remains, as long at they maintain their legal power, armaments and funding to kill. Whatever has been done or tried for training to confront racial biases has not worked.
In addition to defunding police, disarming them removes their capacity for racially targeted brutality and killing. This would involve removing their powers to inflict serous bodily harm or death based on their so-called reasonable perception of threats under section 25 of the Code, as well as for changes to section 34 of the Code that excludes police from the same criteria of self-defence as an ordinary person. Police powers to show up with guns in response to any call–with mental health or wellness checks being particularly egregious–should be stripped away. Reforms such as body cameras would be mainly useful after the fact, but they do nothing to alter racist perceptions, and have been found far less effective than many believe.
Defund and disarm police. Fund communities.
Asaf Rashid is lawyer and long-time community organizer.