The Use of Deadly Force in the Apprehension of
Fugitives from Arrest
A peace officer is permitted under some circumstances to use
deadly force1 in making an arrest. Any resistance on the part of
the suspect, for example, may be met by deadly force if the officer
reasonably believes that it is necessary to protect himself or others
under his protection.2 As well, it is sometimes justifiable to use
deadly force in order to apprehend someone who flees from arrest.3
It is the latter aspect of the question which will be treated in this
note. An attempt will be made to assess the relevant Canadian law,
often by means of a comparison with that of the United States, under
four main headings: (1) Occasions when deadly force is necessary;
(2) The application of deadly force to misdemeanants;
(3) The
grounds for arrest: reasonable and probable or certain; (4) Categories
of offences which should permit deadly force when necessary.
1. Occasions when deadly force is necessary.
Section 25(4) of the Criminal Code,4 which sets out the Canadian
law on the subject, makes it evident that a peace officer, far from
being entitled to employ whatever means and methods he chooses
to prevent the escape of an offender who takes flight to avoid arrest,
may only use such force as is necessary. Deadly force may be used
except where “the escape can be prevented by reasonable means in
a less violent manner”. Since the meaning of this latter clause of
the article depends ultimately on the facts of each case, it is important
to see how it has been interpreted by the courts.
In R. v. Smith,5 the accused, a police officer, attempted to arrest
without a warrant a man whom he believed, on reasonable and
probable grounds, to be guilty of theft. The suspect, upon catching
1 The expression “deadly force” refers to force which may result in death.
2 Sec. 25(1) and (3) Cr. C.
3 Sec. 25 (4) Cr. C.
4 “A peace officer who is proceeding lawfully to arrest, with or without warrant,
any person for an offence for which that person may be arrested without warrant,
and everyone lawfully assisting the peace officer, is justified, if the person to
be arrested takes flight to avoid arrest, in using as much force as is necessary
to prevent the escape by flight unless the escape can be prevented by reasonable
means in a less violent manner.”
G (1907), 17 Man. L.R. 282, 13 C.C.C. 326.
McGILL LAW JOURNAL
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sight of the accused, fled. After firing several shots in an unsuccessful
attempt to induce him to surrender, the accused, becoming exhausted,
and allegedly believing that the suspect, then about twenty-five
yards ahead of him, was about to escape, fired at him with the
object of wounding him in the leg. The revolver was unintentionally
pointed too high and the bullet struck the deceased in the head,
killing him instantly.
In his directions to the jury Mr. Justice Perdue of the Manitoba
Court of King’s Bench instructed them to consider whether the
accused could have apprehended the suspect by any other means
than by shooting him. He emphasized that:
Shooting is the very last resort. Only in the last extremity should a peace
officer resort to such a dangerous weapon as a revolver in order to prevent
the escape of an accused person who is attempting to escape by flight.
A man who is fleeing from lawful arrest may be tripped up, thrown
down, struck with a cudgel and knocked over if
it is necessary to do so to
prevent his escape, and if he strikes his head on a stone and is killed the
police officer is absolved because the man was fleeing to escape lawful
arrest and the means taken to stop him were not dangerous and not likely
in themselves to cause his death. But firing at a man with a revolver
may result in the death of the man, as it did in this case, although the
intention was only to wound and so prevent his escape.6
His Lordship told the jury that they had to consider what
assistance was within immediate reach of Smith. Noting that it is
the duty of every citizen to assist in the pursuit and capture of a
criminal fleeing arrest when so called upon by a peace officer,
Perdue, J., said:
You will have to consider whether Smith, if he had not had that
revolver or had kept it in his pocket, might not have called to his assistance
persons on the street who would have joined him in the pursuit and have
prevented [the] escape. You will consider whether firing with the revolver
did or did not deter them from rendering assistance. You will also have
to consider whether Smith should have abandoned the pursuit of Gans
at that time. He says his breath failed, his wind was gone; but should
he have called upon some of the other persons who were running behind
him, and have asked them to follow.., and keep him in sight until another
policeman came up? You will have to consider
could
have been prevented by such means. 7
At the request of counsel for the defence, his Lordship further
explained to the jury that the escape referred to in sec. 418 meant
escape from the flight then going on and that the possibility of
the fugitive being found and apprehended subsequently need not be
the escape …
if
6 Ibid., at p. 330.
7Ibid., at pp. 380-331.
8 Now sec. 25 (4).
No. 2]
NOTES
considered. After deliberation, the jury brought in a verdict ac-
quitting the accused on a charge of manslaughter.
Similarly, in R. v. Purvis,9 a policeman was declared to have
justifiably used deadly force. Two men who had escaped from jail
and had subsequently committed various offenses and who were
believed to be dangerous, armed and likely to offer resistance if
any attempt were made to arrest them, were being sought by a
squad of heavily armed policemen. The two suspects were finally
confronted, but while being questioned by the officers, the accused
and others saw one of the suspects raise his arm with something
in his hand which looked to them like a gun. One officer grabbed
hold of his arm, but the suspect broke away and started to run; in
pursuit, the accused fired two warning shots in the air which had
no effect. Intending only to stop the suspect’s flight, the accused
then fired two more shots, this time at the lower part of the
escaping man’s legs, but the shots killed him.
In acquitting Purvis of a charge of criminal negligence, Swayze,
J., declared himself satisfied that, in the circumstances, every rea-
sonable means of making the arrest in a less violent manner had
been exhausted before shooting and that, at that moment, no other
effective means of force was available. Nonetheless, it was pointed
out that the accused might have been found guilty had any of the
various circumstances developed in the evidence been wanting and
It was stressed at the end of the decision that:
The fatal result of the shooting by the accused is most regrettable and
could not be allowed to go unchallenged. It is to be hoped that he and all
other peace officers will be warned of the great risk they take in resorting
to firearms in pursuing a fleeing criminal. Only in very exceptional cases
should this course be adopted, in view of the fact that the officer in so
doing may be called upon to justify the shooting in a criminal action,
as the accused in this case has been.9
Vignitch v. Bond -0 is an example of a situation where a court ruled
Jiat the application of deadly force was not neccessary in order to
apprehend the fugitive. As the plaintiff was leaving a railway yard,
allegedly with stolen property, the defendant, a C.P.R. constable,
struck him twice on the head with his gun, stunning him and causing
him to fall. After plaintiff regained his feet and while he was rubbing
blood from his face the constable shot and wounded him. In awarding
damages in a civil action Adamson, J., referred with approval to
R. v. Smith:1oa
9 (1929), 51 C.C.C. 273.
9a Ibid., at p. 293.
10 (1928), 37 Man. L.R. 435, [1928] 1 W.W.R. 449, 50 C.C.C. 273.
10a (1907), 17 Man. L.R. 282, 13 C.C.C. 326.
McGILL LAW JOURNAL
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* .I heartily concur in the statement… that “shooting is the very last
resort.” In the present instance it seems to me that it was not done as a
last resort. Bond had not attempted to pursue the plaintiff, he had not
called upon anyone to assist him, he had not attempted to handle the
plaintiff after he struck him with his gun. There is some evidence that
the shooting kept people from coming to his assistance though they were
not called upon. Shooting a gun off, even as a threat or warning or
attempted intimidation should not be lightly resorted to in a closely built
up part of the city… I have found that there was no “flight to avoid
arrest,” and even if there was, I find that the escape of the plaintiff
could have been prevented by reasonable means and in a less violent
manner than by shooting him through the body.’1
Cases have also been reported in which deadly force was used
in the course of a lawful arrest without a deliberate intention either
to wound or to kill but in which death accidentally resulted.
The Supreme Court of Canada has held that it is permissible
to fire warning shots into the air or the ground in order to induce
the person fleeing to surrender. In Savard v. R.,12 Gu6nette, a fleeing
suspect, was struck by a bullet fired by a member of the R.C.M.P.
when warning shots had been fired into the air and ground. In the
course of quashing a conviction for manslaughter, Mr. Justice Tas-
chereau stated:
Sans doute, les trois constables qui poursuivaient Gudnette se sont entendus,
tacitement ou autrement, pour tirer des coups de feu dans l’air ou sous
le sol, afin d’inspirer au fugitif une crainte salutaire, qui peut-8tre
le
pousserait h se livrer aux officiers de justice, et cette entente demeure
jusqu’ici dans les cadres de la stricte 16galit6. Rien en effet ne d6fend A des
constables, autoris~s A porter des armes, de s’en servir pour les fins que
je viens de mentionner.13
The right to fire shots into the ground has occasionally had
unfortunate results for those who have chosen to flee.
In Maratzear v. C.P.R.,14 a civil action, two constables charged
with investigating thefts of merchandise from railway cars, had
seen two persons enter one of the cars and throw bales of merchan-
dise onto the ground. When the suspects jumped from the car and
began to flee, the constables, in pursuit, first shouted at them to
stop and then fired a shot in the air but to no avail. Realizing all
the while that the suspects were on the verge of escaping, a second
shot was fired into the ground. The bullet ricocheted, and struck
one suspect, who later died from the wound. In an appeal to the
Quebec Court of Review from an earlier dismissal of an action for
damages, De Lorimier, J., said:
“Ibid., at pp. 280-281.
12 [1946] S.C.R. 20, (1945), 85 C.G.C. 254, 1 C.R. 105, [1946] 3 D.L.R. 468.
13 Ibid., at p. 31.
14 (1920), 27 R.L. 81, 37 C.C.C. 297.
No. 2]
NOTES
[Ils ont] eu raison.1 5
La preuve d6montre d’une mani6re 6vidente que le mari de la demanderesse
6tait un voleur operant de nuit et qu’il a fait tout ce qu’il a pu pour
6viter son arrestation, et que si l’officier de la paix ne lFavait pas atteint
de ]a balle de son revolver, i i se serait 6chapp6. Les constables ont rempli
le d~sir de la loi dans les circonstances…
In Merin v. Ross,’16 the defendant police officer, suspecting the
driver of a car of breaking into a shop, arrived at the garage from
which he was satisfied the car had come just in time to see a man
emerge who was wearing the same kind of hat as he had observed
the driver of the car to be wearing. After shouting that he was a
police officer, and ordering the man, who by this time had been
joined by two other men who also fled, to stop, he fired several
shots in the air and, while under a viaduct, on the ground behind
the men running ahead of him. One of the shots ricocheted and
killed the principal suspect.
is
reasonable
Mr. Justice Fisher of the British Columbia Supreme Court stated:
It seems to be clear that if such escape could have been prevented by
reasonable means in a less violent manner, the shooting should not have
is suggested that the defendant might have stopped
been resorted to. It
and got the name and address of the driver of the car.., or in any case
should have done nothing more than to fire in the air but I cannot see
to believe that the escape could have been thus
that it
prevented or by any other reasonable means in a
less violent manner.
There is undoubtedly a principle here involved which concerns the rights
of both the public and the individuals concerned. The result is greatly
to be regretted and one might very naturally sympathize with the relatives
of the deceased but the duty and rights of the police in protecting public
interests must be considered and, though I would like not to part with this
case without emphasizing what was said by the court in the Smith case …
that “shooting is the very last resort,” I must find in the present case
that the defendant in shooting as he did was acting within his rights in
a proper manner and doing no more than his duty required him to do in
in protecting public
the circumstances while engaged
interests. The
therefore sustained and the action is
defendant’s plea of justification is
dismissed.17
On the other hand, in two more recent decisions, the courts have
reached different conclusions. In Woodward v. Begbie, 8 plaintiff,
who was loitering or prowling at night “upon the property of an-
other person near a dwelling house situated on that property” con-
trary to s. 162 Cr. C. took flight when defendant police officers
attempted to apprehend him. Both officers gave chase and fired
shots at the ground, one of which pierced plaintiff’s thigh. In the
15 Ibid., at p. 87.
16 (1932), 46 B.C.R. 471, [1933] 1 W.W.R. 109, 60 C.C.C. 18.
171bid., at pp. 21-22 (C.C.C.).
‘8 [1962] O.R. 60, (1961), 132 C.C.C. 145, 31 D.L.R. (2d) 22.
McGILL LAW JOURNAL
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action for assault, McLennan, J., of the Ontario High Court held
that the circumstances did not justify the use of guns. At the time
when the first shot was fired, it could hardly have been apparent
that the plaintiff was going to escape. When the second shot was
fired one of the officers was already overtaking the plaintiff. Al-
though the defendants did not intend to hit the plaintiff, the shooting
was negligent and both defendants were held liable.
In Beim v. Goyer,19 the Supreme Court of Canada looked to the
principles of civil responsibility to decide the issue without consider-
ing section 25(4) Cr. C. The defendant police officer ‘and another
constable saw the plaintiff driving an automobile which they knew
to be stolen in the wrong direction on a one-way street. Ignoring
their signals to stop and abandoning the car, the suspect fled across
a rough, rocky field, partially covered with snow. The first constable
to leave the police car fired several warning shots, but becoming ex-
hausted, was forced to give up pursuit. The defendant, meanwhile,
continued the chase and fired warning shots as well, though falling
twice on the rough terrain. While he was preparing to fire still an-
other shot into the air, he fell again and struck his elbow on the
ground. The shot, which was discharged accidentally, struck the
plaintiff and seriously injured him.
The majority of the Supreme Court considered the matter as
one of pure negligence and found Goyer to be civilly liable. It has
been submitted elsewhere 20 that the real issue in this case was not
grasped, for to use the words of Martland, J., in his dissenting
opinion, at p. 20:
The issue which the jury should have been asked to determine was whether
the conduct of the respondent, during his pursuit of the appellant, was
negligent; and, in determining that issue, they should have been instructed
that such conduct had to be considered in light of the fact that the appellant
was seeking to escape arrest, and that the respondent was a peace officer,
with the right defined in s. 25(4) of the Criminal Code. They should have
been asked to determine whether, under those circumstances, it was negligent
for the respondent to carry his revolver in his hand, and whether it was
negligent for him to fire a warning shot in the course of pursuit without
coming to a halt.
The author of the comment concludes that:
Instead of being able to appreciate the nature of the duty of care owed by
respondent to young Beim in the light of his duty to make an arrest, the
circumstances were reduced by the trial judge to a pure consideration of
conduct, accidental to the true question as to what action the policeman
was allowed to take in this particular situation. 21
19 [1965] S.C.R. M58, [1966] 4 C.C.C. 9, 57 D.L.R. (2d) 253.
20 Leclerc, Case and Comment: Beim v. Goyer, (1967), 13 McGill L.J. 516.
21 Ibid., at p. 520.
No. 2]
NOTES
It is submitted that the Supreme Court put this matter in
its
proper prospective. As Spence, J., noted, at p. 24:
We are not really concerned at all with the provisions of s. 25 of the Criminal
Code and the issue of justification. The Defendant has always sworn and
made his whole defence upon the allegation that the Plaintiff was shot
accidentally and there was no question of justification for the use of any
degree of force. The matter is reduced to a pure question of negligence.
Constable Goyer had twice fallen while in pursuit, had himself
fired two warning shots and did not intend to shoot at Beim since
he knew, as the jury later answered, that the escape could have
been prevented by reasonable means in a less violent manner. In
fact, he specifically answered in reply to a question put to him by
the jury, that he would not have fired voluntarily at Beim if his
revolver had not gone off accidentally. He was clearly at fault be-
cause he failed to foresee that he could have stumbled again and
accidentally discharged his revolver.
An automobile was used as a means of escape in A.-G. Canada
V. Sandford.22 Two constables in a patrol car observed an automobile
stop at a service station which was closed. Suspecting some illegal
purpose, they drew up beside the car to investigate. When one of
the constables shone a flashlight on the driver and observed that
there were several persons in the car, the vehicle suddenly sped off
and the constables gave chase. One or two pistol shots were fired
in the air and then several more shots were aimed at the rear tires
of the car. The police car radioed ahead and another patrol car set
up a partial road block. When the car broke through, the two police-
men at the roadblock each fired two shots at the tires, one of which
struck and killed an innocent passenger.
Thurlow, J., of the Exchequer Court felt that, in the circum-
stances, the officer who fired the fatal shot had not exhausted all
other means at his command to prevent the escape. The police were
in close pursuit and able to summon further assistance by car radio.
The siren could have been used to warn drivers of other vehicles and
thereby minimize the danger at intersections. Moreover, even assum-
ing that there was no other reasonable means of preventing the
escape of the driver and that the police officer could have justified
shooting and killing him in an attempt to hit one of the tires, the
officer was negligent in shooting as he did without due regard for
the safety of the passengers.
On the other hand, in Priestman v. Colangelo,23 the Supreme
Court held that the death of innocent parties was not foreseeable.
22 [1957] Ex. C.R. 210, 118 C.C.C. 93, 11 D.L.R. (2d) 115.
23 [1959] S.C.R. 615, 124 C.C.C. 1, 30 C.R. 209, 19 D.L.R. (2d) 1.
McGILL LAW JOURNAL
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The defendant and another constable in a police car were pursuing
a stolen vehicle driven by one Smythson. On three different occa-
sions, the police car attempted to pass the stolen car and each time
was cut off by Smythson. The third time, the police car was forced
over the curb and was compelled to slow up in order to avoid col-
liding with a hydro pole. Thereupon, the defendant fired a warning
shot in the air and Smythson accelerated. The cars were approaching
a very busy intersection and the defendant attempted to steady his
arm by placing it on the car window sill while he aimed his pistol
in an attempt to deflate a rear tire of the fleeting car. As he fired,
the patrol car went over a bump in the road, and the shot hit the
rear window of Smythson’s car, ricocheted and struck Smythson in
the back of the neck, rendering him unconscious. The car went out
of control and killed two young ladies.
The Supreme Court, by 3-2, dismissed the civil action, the ma-
jority taking the view that the principle that shooting is a last
resort is too broadly stated and cannot be applied under all circum-
stances. In the words of Locke, J.:
Applied literally, it would presumably mean in the present case that, being
unable to get in front of the escaping car, due to the criminal acts of
Smythson, the officers should have abandoned the chase and summoned all
the available police forces to prevent the escape. This would have involved
ignoring their obligation to endeavour to prevent injury to other members
of the public at the intersections which would be reached within a few
seconds by the escaping car.2 4
And then, adressing himself to the question of foreseeability, he
stated, at p. 11:
It was only the fact that the car struck a bump on the roadway, of the
existence of which he was unaware, which elevated the revolver as the shot
was fired that caused the bullet to pass through the rear window of the
fleeing car and strike Smythson. Had the bullet hit the tire, presumably a
blow-out would have resulted and the speed of the fleeing car reduced, so
that the police car could have passed and then stopped it. There is no
evidence that such a blow-out would have menaced the safety of persons
100 yards distant who were off the roadway, and I think this is not to be
presumed.
Thus, where one attempts to make a lawful arrest and the arrestee
flees, deadly force may only be deliberately employed as a last resort,
provided all reasonable alternatives have been exhausted. If
the
pursuit is by foot, the officer must be aware that he may call upon
local citizens who have a duty to assist him. This requirement, a
relic of the days of the hue and cry, is unrealistic and should no
longer be considered by the courts.
24 124 C.C.C. at p. 10.
No. 2]
NOTES
On the other hand, where the shooting is accidental, section 25 (4)
theoretically provides exoneration from civil in addition to criminal
liability.25 The usual means of flight are by foot and by car. If flight
(1) a bullet may ricochet
is by foot, there are two basic dangers:
and strike the fugitive and (2) a bystander may be injured. In the
first case, it should be sufficient for a policeman to show that
shooting was a last resort. This situation could be largely avoided
by restricting warning shots to those fired into the air, unless the
chase takes place in an enclosed area. In the second case, however,
it is insufficient to prove that shooting is a last resort. In addition
to his duty to apprehend, a policeman has a duty not to do an act
which a reasonable man placed in his position would foresee as likely
to cause injury to persons in the vicinity.26 Therefore, where flight
is by foot he must bear in mind the danger to bystanders.
If the pursuit is by car, the police may shoot at the tires or at
the driver, but, again, only as a last resort. They must consider
roadblocks and radioing ahead for assistance as reasonable alter-
natives to shooting, balancing these latter alternatives against the
danger which the fleeing car itself creates. They must bear in mind
the possibility that if the tires or driver are hit, the car might go
out of control and strike someone, an innocent passenger in the car
may be shot, or a stray bullet might hit a bystander.
2. The Application of Deadly Force to Misdemeanants
In the United States, the general rule of law is that an arrestor
can use such force as is necessary to effect the arrest of a misde-
meanant, save deadly force. It is believed that, since every person’s
life is at least theoretically an asset to society, more would be gained
25 Ibid., at p. 17.
20 In the words of Locke, J., in the Priestman case, ibid., at p. 8: “The
performance of the duty imposed upon police officers to arrest offenders who
have committed a crime and are fleeing to avoid arrest may, at times and of
necessity, involve risk of injury to other members of the community. Such risk,
in the absence of a negligent or unreasonable exercise of such duty, is… damnum
sine injuria”. In Poupart v. Lafortune, unreported, C.S.M. 606,735, March 20,
1967 and presently under appeal, Mr. Justice Batshaw adopted a strict view
of the nature of this duty. A bandit carrying a machine gun was walking back-
wards down a corridor when a policeman rushed in, fired and struck an innocent
bystander. Batshaw, J., stated.
While it is undoubtedly true that the atmosphere must have been charged
with tension at the time, nevertheless it is precisely in such situations that a
peace officer often has to perform his duties, in accordance with the training
he has received. And he is expected to show a greater element of “sang froid”
and control than an individual not so trained.
McGILL LAW JOURNAL
[Vol. 14
by preserving his life than by executing him. It is also felt that a
misdemeanour is not a serious enough offence such that the police
may kill the misdemeanant if they cannot arrest him. Thus, in State
V. Smith, 27 the Court said:
In such cases it is better, and more in consonance with modern notions
regarding the sanctity of human life, that the offender escape than that
his life be taken, in a case where the extreme penalty would be a trifling
fine or a few days’ imprisonment in jail.
In Canada, there is no statutory authority for the application of
deadly force to a fleeing misdemeanant. The subject is mentioned
in two reported cases. In R. V. Purvis,28 where the deceased, serving
a sentence for a misdemeanour, escaped from jail and proceeded to
commit various indictable offences, Swayze, J., stated at p. 293:
It is quite possible my judgment might have found the accused guilty had …
the charge against the deceased … been for a misdemeanour.
In Carri~re v. Citg de Longueuil,29 two policemen in a patrol car
saw an automobile with its lights turned off speeding through a
stop sign. With their siren on, they gave chase and succeeded in
approaching the fleeing car. When their orders to halt were ignored,
several warning shots were fired at the tires of the car and in the
air. The car struck a pole and just as its occupants were getting out,
a bullet killed young Carri~re. An action in damages was instituted
by the parents of the dead boy. In their pleadings, the defendants
alleged that when they first saw the speeding car, they “realized”
that it was either stolen or that it contained thieves fleeing from
a burglary. Tellier, J., however, noted that “realizing” is not the
equivalent of “knowing”. The theft of the car had only been reported
several hours after its commission. As far as the police were con-
cerned, the occupants of the fleeing car had merely violated municipal
traffic by-laws. In the circumstances, his Lordship held that the
police had acted imprudently by employing unjustified violence and
force.
Even in the United States, there is considerable uncertainty among
legal scholars as to whether deadly force should ever be used in
misdemeanour cases. For, despite the general view that it is better
to allow one who is guilty only of a misdemeanour to escape rather
than to take his life, it can be argued that some misdemeanours
involve risks of such a nature that deadly force should be allowed.
La Fave gives the following illustration: a traffic officer sees a car
speed through an intersection against the light. The car barely
27 (1905), 127 Iowa 534, 103 N.W. 944 at p. 945.
28 (1907), 17 Man. L.R. 282, 13 C.C.C. 326.
29 [1957] C.S. 143.
No. 2]
NOTES
misses a pedestrian crossing the street. When the officer steps into
the street to signal the driver to stop, he drives on, almost hitting
the officer. The officer draws his revolver and fires at the car.80
The Restatement of Torts does not express an opinion regarding
the extent to which force should be used in making an arrest for
a misdemeanour involving danger of death or serious bodily harm.3 1
The comments to the Model Penal Code note that many misde-
meanours do endanger life and that “the felony-misdemeanour dis-
tinction is inherently incapable of separating out those persons of
such dangerousness that the perils arising from failure to accomplish
immediate apprehension justify resort to extreme force to accom-
plish it”‘.32
Police officers faced with the necessity of making a quick decision
on the use of force may feel that they should employ only the criter-
ion of danger without first considering whether the conduct is a
misdemeanour or a felony. This is particularly likely when the con-
tinuing conduct of the offender presents some immediate threat of
harm.
The above criticisms may also be directed at the Canadian dis-
tinction between misdemeanours and criminal offences for which
an arrest may be made without a warrant. Although the law is not
beyond reproach in this area, it can be said that the legislative
characterization of certain conduct as a mere misdemeanour is a
determination that the conduct is not so dangerous that deadly force
is justified against it. If the need strongly arises to curb particular
conduct by making it subject to deadly force, it can be converted
into a criminal offence. To entrust police officers with discretion as
to whether or not a particular mode of conduct constitutes a danger
significant enough to be subjected to deadly force would introduce
an element of subjectivity more productive of abuse than good.
8. The Grounds for Arrest: Reasonable and Probable or Certainty
In the United States, the law allows an arrestor to kill, when
necessary, to arrest a felon. Although the rule is easily stated, the
courts have had difficulty applying it. One of the controversial issues
is whether the arrestee must be a felon in fact before an arrestor
is entitled to use deadly force to make the arrest.
In all states, it is agreed that mere suspicion that a person is
a felon is insufficient to permit the application of deadly force. Thus,
3OWayne R. La Fave, Arrest, (1965), at p. 213.
31 Restatement of Torts, sec. 131, second caveat (1934).
32 Model Penal Code, sec. 3.07, Comment 3 (Tent. Draft No. 8, 1958).
McGILL LAW JOURNAL
[Vol. 14
in Wiley v. State,3 3 where the defendant deputy sheriff, patrolling
a highway together with another deputy looking for persons who
had committed a robbery nearby, saw a car some distance away
turn and proceed in the opposite direction. When they pursued and
fired shots, the car came to a halt. One of the shots killed the
driver’s wife who was sitting beside him. A verdict of murder in
the second degree was affirmed by the Arizona Supreme Court which
held that there was no justification for an officer to kill a person
who fled from him when the officer was acting merely on suspicion.
Beyond this point of unanimity, there are three views as to the
liability of a police officer when he applies deadly force. The first
exonerates the officer from both civil and criminal liability if he
reasonably believed that the deceased committed a felony, although
none had been committed dn fact. Thus, in People v. Kilvington,34
the California Supreme Court reversed a conviction for manslaughter
of a night watchman who, hearing one man chasing another shout
“stop thief” and himself attempting to overtake the alleged thief and
yelling that he would shoot him if he did not stop, shot and killed
the fleeing man. At his trial the defendant testified, “I couldn’t tell
whether this man had stolen a loaf of bread or robbed a bank…
For all I know, this man might have committed a murder, or robbed
someone”.35 In fact, the man pursuing the deceased had seen him
run out of a back yard and had mistaken him for a thief. It was
held:
[T]he court ought to have instructed the jury that defendant had the right,
under the circumstances established by the evidence, to arrest the deceased,
the act of
leaving the jury to determine the further question whether
shooting the deceased in attempting to effect such arrest was or was not
an act of criminal negligence on the part of the defendant. The latter is
purely a question of fact, and its determination must be left to the sound
judgment and discretion of the jury, and in the decision of which question
the defendant is entitled to the benefit of any reasonable doubt arising upon
the evidence. 3 6
Other states take a slightly more stringent position, requiring
that a felony must have in fact been committed although the de-
ceased need not have committed it, if the officer reasonably believed
that he did.
Finally, there are jurisdictions which impose a rule of absolute
liability. The right to use deadly force exists only when the deceased
33 (1918), 19 Ariz. 246, 170 P. 869, discussed
in Commonwealth v. Duerr,
(1946), 45 A.2d 235 at p. 239.
34 (1894), 104 Cal. 86, 37 P. 799.
35 Ibid., at p. 799.
36 Ibid., at p. 801.
No. 2]
NOTES
has in fact committed a felony regardless of all considerations of
reasonable belief. The latter view was expressed in the case of
Petrie v. Cartwright.37 Plaintiff, proceeding home one night with
another woman, was followed by two men who exposed themselves
and proposed sexual intercourse. The women hurried on until they
met plaintiff’s husband who, after being told of the men’s conduct,
chased them; in the scuffle that ensued one of the men swiped at
the husband with a knife. The deceased took flight when someone
called out to him to run, but at that very moment the defendant city
marshall arrived on the scene and, seeing one man fall while plain-
tiff’s husband sped by, he twice called to the latter to halt. When
he did not stop –
the mar-
shall fired at the ground, and then a second time took aim and killed
the fleeing man. Neither had recognized the other in the dark. The
man who had fallen, meanwhile, suffered no injury apart from a
bruise on the back of the head.
he did not appear to have heard him –
In a civil action instituted under the Kentucky wrongful death
statute, the marshall pleaded that he had used no more force than
was necessary and that he reasonably believed that a felony had
been committed by the deceased. The appeal court first held that
Petrie had committed no felony and then stated:
We have been unable to find any common-law authority justifying an officer
in killing a person sought to be arrested, who fled from him, where the
officer acted upon suspicion, and no felony in fact had been committed…
it seems to us that the sacredness of human life and the danger of abuse
do not permit an extension of the common-law rule to cases of suspected
felonies. To do so would be to bring many cases of misdemeanour within the
rule, for in a large per cent. of these cases the officer could show that he
had reasons to suspect the commission of a felony, and it would be left
entirely with him to say whether he was proceeding against the defendant
for a misdemeanour or for a felony. The notion that a peace officer may
in all cases shoot one who flees from him is unfounded.., where there is
only a suspicion of felony the officer is not warranted in treating the
fugitive as a felon. If he does this, he does so at his peril, and is liable if
it turns out that he is mistaken. He may lawfully arrest upon a suspicion
of a felony, but he is only warranted in using such force in making the
arrest as is allowable in other cases not felonious, unless the offence was
in fact a felony.38
Similarly, in Commonwealt V. Duerr,3 9 the police arrested a car
thief who told them of a supposed meeting with his accomplices. A
trap was laid, but the wrong men appeared. Seeing a roadblock, they
suspected a hold-up, fled and were killed. In holding that no matter
37 (1902), 114 Ky. 103, 70 S.W. 297.
38 Ibid., at p. 299.
39 (1946), 158 Pa. S. 484, 45 A.2d 235.
McGILL LAW JOURNAL
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how reasonable the grounds of belief may be, an officer making an
arrest upon suspicion of a felony is not justified in killing the sus-
pect unless a felony has in fact been committed, the court stated:
The felony in question must have been committed by the person whom the
officer is presently seeking to arrest. Otherwise, if a felony has been com-
mitted in the community an officer could shoot and kill an entirely innocent
person, whom he might suspect of being a felon as in this case.3 0a
Thus, starting from the premise that an arrestor may kill if
necessary to effect an arrest, the courts have arrived at different
results, thereby indicating the difficulty of attempting to balance
the interests of society with those of the individual. Some courts
have emphasized the speedy capture of suspected felons and the im-
portance that respect be shown to police officers. Others have rec-
ognized the need to protect the innocent.
If the courts admit that an officer may not kill on mere suspicion,
is it not desirable that he be permitted to kill as a last resort to
apprehend someone whom he has reasonable grounds to suppose
is a felon? In support of this view, it has been argued that if the
officer had reasonable grounds to believe that the fugitive was guilty,
he should not be liable for killing him because, had the facts actually
been as he believed, then no action at law would lie against him.40
The trend in the United States is toward requiring arrestors to
know with certainty that the person to be arrested is a felon before
deadly force can be used to effect the arrest. The prevailing view,
according to Moreland,41 is that human life is so precious and so
irreplaceable that it is better that an occasional felon escape than
that an occasional innocent man be killed on suspicion, even though
the suspicion be a reasonable one.
In Canada, on the other hand, there is little room for judicial
legislation as the Criminal Code limits the use of deadly force to
an offence for which a person may be arrested without warrant,42
a category which includes both summary and indictable offences.4 2a
With respect to the former, the use of deadly force is condoned only
where a peace officer is arresting a person whom he finds actually
committing the offence. As to the latter, a police officer may use
deadly force where he finds a person actually committing an indictable
39a Ibid., at p. 239.
40 Waite, Some Inadequacies in the Law of Arrest, (1930-1), 29 Mich. L.R.
448, at p. 462. See also Moreland, The Use of Force in Effecting or Resisting
Arrest, (1954), 33 Neb. L.R. 408, at p. 411.
41 Loc. cit., at p. 412.
42 Sec. 25(4) Cr. C.
42a Sec. 435 Cr. C.
No. 2]
NOTES
offence or where he seeks to arrest someone who has committed or
who on reasonable and probable grounds he believes has committed
or is about to commit an indictable offence.42b
The requirement of certainty has other defects. It
Whether Canadian law should be revised to follow the American
trend of requiring certainty before a police officer may be permitted
to use deadly force is questionable. If such a position were adopted
in Canada the result would, it is submitted, render law enforcement
less effective without an appreciable corresponding benefit to society.
Consider the following example: a policeman on night patrol, walking
down an alley in a commercial section of the city, sees a man coming
towards him carrying a bulky sack. Suspecting a theft, he shouts
at the man to halt, informing him at the same time that he is a
policeman. If the man flees, what may the policeman do? If the
reasonable and probable criterion applies, he can shoot –
as a last
resort –
to halt the escaping man. On the other hand, if he must
be certain that the man has committed a theft, he is unable to shoot
because he did not see him commit it. Therefore, in such a situation,
unless the officer is fleet of foot, the suspected felon will escape.
introduces
an absolute standard whereas even the standard of the burden of
proof required in a criminal trial is only that of “beyond a reasonable
doubt”. This would require not only that the officer be certain that
a felony has been committed, but that he be certain that the escaping
man committed it. In the Canadian case of R. V. Mitche l,43 the
occupants of a’stolen car which was being pursued by a police cruiser
some distance behind suddenly flung open the doors and fled in
opposite directions. The car began to roll towards a parked car
which belonged to one Young, who, anxious to discover why the
men were conducting themselves in this fashion, left his car and
proceeded across the road after one of them. Observing the police
car he realized that it was in pursuit of these men, he continued
to pursue the man with the intention of assisting the police in
apprehending him. The defendant constable, seeing these two men
running, thought that both were the suspects he was seeking. As
Young was about to place his hands upon a fence for the purpose
of vaulting over it in pursuit of the fugitive, he was shot and
wounded by the constable. Apart from the question of whether
the police officer was negligent in shooting, this case illustrates
42b An offence may be either an indictable offence or one punishable under
see sec. 231(1). In such circum-
the
summary conviction (e.g. common assault –
stances, since the Crown has a discretion as to how it will proceed,
distinction of sec. 435 becomes academic.
43 (1937) 69 C.C.C. 406.
McGILL LAW JOURNAL
[Vol. 14
what an unduly harsh and unfair burden a standard of strict liability
imposes upon a policeman.
Furthermore, the criterion of reasonable and probable grounds
does not mean that the policeman has a license to kill. The fact
that he would have to show reasonable grounds for the killing would
deter the officer from killing merely because the arrestee attempted
to escape.
Finally, there exists an additional unwritten restraint; the police
are apt to limit their use of deadly force to those instances where
they believe such action would receive public approval, as in their
dealings with dangerous professional criminals.
4. Categories of Offences Which Should Permit Deadly
Force When Necessary.
The common law rule that an officer may do all that is reasonably
necessary to effect an arrest for a felony was originally accepted
because all felonies were punishable by death, and, therefore, the
killing of an actual or suspected felon was regarded as preferable
to his escape from arrest. With the passage of time, legislatures
have made conduct a felony which frequently involves less serious
penal consequences than offences which are classified as misde-
meanours.
In contrast to this practice, there has been a general relaxation
of the severity of criminal law by removing the death penalty from
less serious felonies and, in some jurisdictions, by removing it even
from serious offences. The result is that today relatively few
crimes are capital offences and only a very small percentage of
arrests are punishable by death. Of these, the number in which
capital punishment is actually imposed
is substantially smaller.
Therefore, if the only justification is the historical one, there is
no more excuse for killing a felon than for killing a misdemeanant.
Canadians long ago became aware of the inadequacies of the
felony-misdemeanour distinction, but, unlike the United States,
abolished this distinction long ago. 44 Sir John Thompson stated
in the House of Commons:
The distinction between felony and misdemeanour was, in early times, nearly,
though not absolutely, identical with the distinction between crimes punish-
able with death and crimes not so punishable. For a long time past this has
ceased to be the case. Most penalties are no longer punishable with death
and many misdemeanours are now punishable more severely than many
44 55-56 Vict., S.C. 1892, c. 29, sec. 535.
No. 2]
NOTES
felonies. The great changes which have taken place in our criminal law
have made the distinctions nearly if not altogether unmeaning.45
As a result of this legislative change, Canada has managed to
avoid most of the difficulties which have been the subject of debate
in the United States. Nevertheless, American efforts at reform are
of interest since they are directed to the question as to whether
deadly force should be applicable only to certain specific offences
or types of offences.
In seeking new justifications for the right to use deadly force,
the Americans have suggested that certain classes of felons are
continuing menaces to innocent citizens as long as they remain at
large. Therefore, the refusal of these offenders to submit to arrest
vests in the police the right to use whatever force may be required
to protect society against the danger of their continued liberty. Once
this theory is accepted, it remains only to determine which criminals
are potentially dangerous while at large.
A number of efforts have been made to deal with the problem
of the differing character of felonies. In the 1930’s, the American
Law Institute’s Restatement of Torts attempted to distinguish crimes
on the basis of whether they normally caused death or serious bodily
harm or involved the breaking and entering of a dwelling house;
if so, deadly force could be used.46 Thus, the Restatement recommended
eliminating the right to use deadly force for minor felonies not
involving danger to the person of another. In 1965, the Institute
reverted to the common law rule,47 probably because their earlier
suggestion had not been applied by the courts and because it restricted
the police too severely.
A more detailed list of felonies was proposed for the Model Code
of Criminal Procedure. Here, an attempt was made to allow an
. the offence for which
officer to use deadly force in cases where “…
the arrest is being made or attempted is treason, murder, voluntary
manslaughter, mayhem, arson, robbery, common law rape, kidnapping,
burglary or an assault with intent to murder, rape or rob… ,,48
The strongest argument in favor of the proposed rule was made
by Professor Mikell at the annual meeting of the Council of the
American Law Institute in 1931 where he said:
It has been said, “Why should not this man be shot down, the man who is
running away with an automobile? Why not kill him if you cannot arrest
45House of Commons Debates, 12 April 1892, p. 1314.
46 Loc. cit.
47 Restatement (Second), Torts, s. 131 (1965).
48 (1931), 9 American Law Institute Proceedings -179.
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[Vol. 14
him 7” We answer; because, assuming that the man is making no resistance
to the officer, he does not deserve death. He may be caught later … But
why should not the man be killed merely because he is fleeing and the
officer cannot at that time arrest him, though he may be fleeing into the
arms of a policeman at the other corner, as frequently happens. May I ask
what we are killing him for when he steals an automobile and runs off with
it? If we catch him and try him we throw every protection around him. We
say he cannot be tried until 12 men of the grand jury indict him, and then
he cannot be convicted until 12 men of the petit jury have proved him guilty
beyond a reasonable doubt, and then when we have done all that, what do
we do to him? Put him before a policeman and have a policeman shoot him?
Of course not. We give him 3 years in a penitentiary. It cannot be then
that we allow the officer to kill him because he stole the automobile, because
the statute provides only 3 years in a penitentiary for that. Is it then for
fleeing? And again, I insist this is not a question of resistance to the
officer. Is it for fleeing that we kill him? Fleeing from arrest is also a
common law offence and is punishable by a light penalty, a penalty much
less than that for stealing the automobile. If we are not killing him for
stealing the automobile and not killing him for fleeing, what are we killing
him for? The two things put together certainly do not admit of the death
penalty.49
However, this provision was so strongly opposed that it was not
the Official Draft of the Model Code of Criminal
included in
Procedure.
In any attempt to draw up a list of serious felonies which
ordinarily create substantial perils of death or injury there is a
danger that the list is unlikely to be sufficiently comprehensive.
In an effort to overcome this problem, the American Law Institute
proposed a draft statute in 1958 which, unlike earlier attempts at
reform, avoided listing specific felonies where deadly force
is
permitted and proceeded upon the principle that use of deadly force
should be justifiable in those situations where the arresting officer
“believes that there is a substantial risk that the person to be arrested
will cause death or serious bodily harm if his apprehension
is
delayed.”’50 This formulation does not attempt to control the grounds
on which the officer may think that a delay in apprehension entails
a substantial risk that the arrestee will cause death or serious bodily
harm. It allows police officers to judge the type of man with whom
they have to deal, subject to their liability in the event of negligence.
The theory constitutes a recognition of the fact that “the police
must make a practical and often hasty judgment as to whether or
not they are dealing with a person who may be a dangerous criminal
in
the sense of a threat to life or limb. They are accustomed to
49 Ibid., at p. 186.
5o Model Penal Code, op. cit., at p. 50.
No. 2]
NOTES
making such judgments and, were the draft adopted, would rarely
be prosecuted when such a judgment was -in fact made.’ 51
Certain criticisms of the Institute’s proposals of 1958, present
themselves. Consider, for example, its application to the situation
where a robber flees armed with a knife. The police officer must
justify the use of deadly force by showing “that there is a sub-
stantial risk that the person to be arrested will cause death or
serious bodily harm if his apprehension is delayed.”
is ques-
tionable whether he can do so. Then too, this new proposal is
nothing more than a rewording of the Restatement of Torts which
was formulated in the 1930’s. Therefore, it is subject to the same
criticism, namely, why should the threat of death or serious bodily
harm be significant, since the danger has passed and the arrestor
is now simply trying to arrest the felon?
It
The most serious and insurmountable criticism arises where the
person whose arrest is sought does not fit into the category permitting
the application of deadly force and the officer does not dare take
the risk of shooting at him. Thus, if the arrestee can outrun him,
he will escape.
Conclusions
Society requires protection against criminals. Since arrest is a
condition precedent to imprisonment, whatever facilitates arrest
benefits society unless there are concomitant consequences which
are socially harmful. Obviously, the right to use deadly force facilitates
arrest. Its legalization notifies the criminal that flight invites the
risk of injury or death. On the other hand, if injury or death does
occur, social injury results. Therefore, the right to use deadly force
should be limited.
The limitations which Canadian law imposes are adequate to
meet the needs of both society as a whole and the rights of individuals
as well. It is sufficient to require that the arrest must be lawful and
that deadly force can only be applied as a last resort. To go beyond
this point and to require certainty on the part of the arresting officer
or to restrict the criminal offences to which deadly force may be
applied is to confer upon the criminal an immunity which both he
and society do not deserve. If effective law enforcement is to be
maintained the race should not be to the swift. The fleeing criminal,
regardless of his offence, must be considered as the author of his
own misfortune.
David M. DOUBILET*
51 Ibid., at p. 60.
* Of the Bar of the Province of Quebec.
