Blog

Police Liability

Mandeep Dhillon

Associate

Tel:       403.692.5209
Email:  mdhillon@vogel-llp.ca

In our society, police chases are not a common occurrence and not much thought is given to them. However, to the police officers themselves, the chase itself is a delicate balancing act as it is important to apprehend the suspect and to deter others from criminal activities. On the other hand, a police pursuit poses risk to the participants and can result in property damage, personal injuries and sometimes fatalities. The latter occurred in the seminal case of Shynall v Priestman in which an officer in a police vehicle that was in close pursuit fired a shot at the tire of the stolen car. However, as the police officer fired, the car struck a bump in the road and the bullet struck the driver of the stolen vehicle, rendering him unconscious. As a result, the stolen vehicle spiraled out of control and fatally struck two young women standing on the sidewalk. A claim was brought against the police officer and the question for the Court was: Did the police officer act reasonably? The Honorable Justice Taschereau and the Honorable Justice Locke held that the police acted properly because they were engaged in the performance of a duty imposed upon them by the Criminal Code and by the Police Act. The Court found that the officers were performing duties imposed by status. The police officers’ actions were reasonably necessary both to prevent the escape and to protect those individuals whose safety might have been endangered had the escaping car reached a busy approaching intersection. In the absence of a negligent or unreasonable exercise of such statutory duty, any result injury or damage to innocent third person was considered to be damnum sine injuria.

This was not the case in the matter of Radke v S(M)(Litigation Guardian of) in which the plaintiff was injured when a stolen vehicle, driven by a 15 year old young offender who was being pursued by a member of the RCMP at the time, ran through a stop sign and collided with the plaintiff’s vehicle. The trial judge held that the police officer did not act within the standard of a reasonable police officer and apportioned 15% fault for the collision resulting from pursuit to the officer. It is to be noted that the question the trial judge faced was that “whether the nature of the crime for which the police officer sought to apprehend the suspect was sufficiently serious to justify the risk of the consequences.”

“13      However, as I have attempted to explain in Burbank, it was not necessary that there be evidence, much less expert evidence, of the standard of care to be met by a police officer for the judge to be able to determine whether the utility of the officer’s conduct justified the risk to public safety. The question the judge had to answer was simply whether the nature of the crime (theft of an automobile) for which the police officer sought to apprehend M.S. was sufficiently serious to justify the risk of the consequences that became manifest within less than a minute of the commencement of the pursuit. The question was not unlike the kind of question judges have to regularly answer in negligence cases and, while there may be aspects of police pursuits that are foreign to those who are not trained or experienced police officers, the answer to the question lay well within what can be said to be common knowledge and experience. It lay in assessing whether Constable Kurtz had properly balanced the competing concerns of the apprehension of a young offender who had stolen a car against the danger of a pursuit at considerable speed on city streets where significant pedestrian and vehicular traffic could be expected.”

2020-07-09T09:45:30-06:00July 9th, 2020|

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