NCJ Number
53453
Journal
UNIVERSITY OF NEW BRUNSWICK LAW JOURNAL Volume: 26 Dated: (NOVEMBER 1977) Pages: 34-47
Date Published
1977
Length
13 pages
Annotation
THE LEGAL OPTIONS AVAILABLE TO INNOCENT VICTIMS OF POLICE ACTION IN CANADA ARE DISCUSSED.
Abstract
THE INNOCENT VICTIM OF A POLICE ACTION HAS THREE AVENUES OF REDRESS: (1) IN SPITE OF THE MANY OBSTACLES, HE MAY TAKE CIVIL ACTION; (2) HE MAY RECEIVE STATUTORY COMPENSATION; AND (3) HE MAY BE PARTY TO A DISCRETIONARY SETTLEMENT. IN REGARD TO CIVIL ACTION, THE TORT LIABILITY OF A POLICE OFFICER IS LIMITED. THE CONCEPT OF DUTY IS CENTRAL TO THE QUESTION OF LIABILITY. IF A POLICE OFFICER HAS REASONABLE AND PROBABLE GROUNDS AND LEGAL AUTHORITY, THE EXISTENCE OF A DUTY TO PRESERVE THE PEACE OR APPREHEND CRIMINALS CARRIES WITH IT A DUTY OF CARE TO ACT REASONABLY IN THE EXERCISE OF THAT AUTHORITY. IF HIS ACTION IS REASONABLE, HE WILL NOT BE CIVILLY LIABLE AND INNOCENT PERSONS INCIDENTALLY INJURED WILL BE LEFT TO BEAR THEIR LOSS. THE TERM DUTY IS TREATED AS A RELATIVE TERM. BARRING A CHANGE, INNOCENT VICTIMS OF POLICE ACTION WILL ONLY SUCCEED IN CIVIL ACTION IF THE POLICE OVERSTEP THE BOUNDS OF PROPER POLICE PROCEDURES. IN THE AREA OF STATUTORY COMPENSATION, THE LAWS PROVIDING COMPENSATION TO VICTIMS OF CRIMES SHOULD BE EXPANDED TO INCLUDE LAWS PROVIDING COMPENSATION TO VICTIMS OF POLICE. THE LAST RESORT FOR AN INNOCENT VICTIM LIES IN THE AREA OF DISCRETIONARY SETTLEMENT (I.E., EX GRATIA PAYMENTS). THIS FORM OF PAYMENT, HOWEVER, IS NOT A RIGHT, AND THE GRANTING OF IT SEEMS TO DEPEND ON THE PRIORITY POLICE DEPARTMENTS PLACE ON PUBLIC RELATIONS. IN ADDITION, SMALL MUNICIPAL GOVERNMENTS MAY NOT HAVE THE SAME FINANCIAL RESERVES AS DO LARGE MUNICIPAL GOVERNMENTS AND MAY NOT BE ABLE TO AFFORD LARGER PAYMENTS. MODIFICATION OF THE PRESENT SCHEMES OF COMPENSATION ARE URGED. FOOTNOTES ARE PROVIDED. (MLC)