New Guidance In Establishing A Successful Reasonable Use Of Force Defence

On May 13, 2019, the Alberta Court of Queen's Bench released its decision in Day v Woodburn. This case will provide welcomed guidance and support to those involved in insuring and defending individuals employed in the law enforcement or security industries. In the decision, Justice Renke provides a meticulous examination of the test for reasonable use of force outlined in Crampton v Walton 2005 ABCA 81 ("Crampton"). While the second stage of the Crampton test has been exhaustively discussed in other decisions, Day provides a much needed analysis of the third stage used in determining whether the level of force used was reasonable. This analysis will assist defence counsel and insurers alike in establishing a robust defence of reasonable use of force.

The facts of Day highlight many of the problems presented in defending unreasonable use of force claims. In January of 2010, Mr. Day led one helicopter and seven other Edmonton Police Service (EPS) vehicles on a high-speed chase through the icy winter streets of Edmonton. The chase ended in a takedown of Mr. Day that resulted in three cracked ribs. Most of Mr. Day's injuries were the result of multiple knee strikes/stuns administered by EPS officers during the arrest. While the use of knee strikes may seem at first glance excessive and unnecessary to those unfamiliar with police procedures, they represent a commonly used tool in subduing uncooperative and potentially dangerous suspects. Defending the officers required Defence counsel to illustrate to the court that these knee strikes were done with the intention to avoid a further escalation in violence during the process of arrest.

Mr. Day and the members of the EPS gave conflicting testimony regarding how the final moments of the chase occurred. Mr. Day claimed that he was sitting quietly in the vehicle when EPS arrived, and that he only got out of the vehicle when ordered to do so. When he did leave the vehicle, he claimed to have been kicked from behind by one of the defendant officers. Mr. Day denied resisting the arresting officers in any way. This version of events would suggest that EPS officers used a level of force over and above what was required to effect the arrest of Mr. Day.

Somewhat expectantly, the officers gave a dramatically different version of events. The arresting officers described Mr. Day as severely non-compliant and indicated that he repeatedly tried to get up once the officers had detained him on the ground. Once Mr...

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