Use of Force (Civil Enforcement)

Goebel v Robertson, 2015 ONSC 4454 (CanLII)

(f) The Use of Reasonable Force

51 At common law, an interference with the arrested person’s liberty, including the use of force, must be no more than is “reasonably necessary”: Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at p. 35; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 22. This limitation was expressed by the Ontario Ministry of the Attorney General in its advice to occupiers in a 1987 publication, This land is whose land? A legal guide to property protection rights, at p. 14:

An occupier will be arresting a trespasser if any actual restraint is imposed on a person’s liberty against that individual’s will.

The restraint may be imposed by the application of reasonable force, or by circumstances that imply the threat of force. In every case, the trespasser should be informed of being under arrest and the reason for the arrest.

This position is consistent with Lerke, supra, at p. 134, and is illustrated by R. v. Cunningham (1979), 1979 CanLII 2874 (MB CC), 49 C.C.C. (2d) 390 (Man. Co. Ct.), at p. 396.

52 In Whitfield, supra, Judson J. stated at p. 50: “A police officer has the right to use such force as may be necessary to make an arrest.” (And, it should be added, to continue the state of being under arrest.) The proposition of Judson J. was formulated in terms of the police because that was the situation in Whitfield itself. See also R. v. Tricker (1995), 1995 CanLII 1268 (ON CA), 96 C.C.C. (3d) 198 (Ont. C.A.), at p. 207, where it was accepted that a police officer is entitled to use reasonable force in making an arrest for a provincial offence under the Highway Traffic Act, R.S.O. 1990, c. H.8. As mentioned, however, the right to use reasonable force attaches at common law to the institution of an arrest, not to the status of the individual making the arrest: see also Lerke, supra, at p. 134, and Halsbury’s Laws of England (4th ed. 1990), vol. II(I), at pp. 524-25.