Ability to retreat was a necessary condition for invoking the defence under section 35 of the old law, but not for other versions of the defence under the old law (specifically old section 34). I was particularly anxious to have clarity on the impact of the proposed new self-defence provisions on what are often known as battered women defences, basically concerning spousal assault and to some extent dating violence, but mostly spousal assault. The new law includes a list of factors that could be taken into account in determining whether the act committed was reasonable in the circumstances. If the aggressor has abandoned the combat, they normally must attempt to communicate that abandonment to the other party. Under the old self-defence provisions, the trigger for action in defence of a person was variously framed under the most frequently invoked versions of self-defence as either "every one who is unlawfully assaulted" (old subsection 34(1)) or "under reasonable apprehension of death or grievous bodily harm" (old subsection 34(2)). Defence — use or threat of force 34 (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; The new law applies not just to acts in defence of oneself, but also where a person acts in defence of a third person, without any special or different qualifications or requirements. In interpreting these provisions, Martin J.A. These problems are not presented in this report in detail. between a reasonably perceived threat of death or grievous bodily harm and the belief that the person cannot preserve himself from death or grievous bodily harm other than by killing). Section 84 simply states, Only the fourth element was really contentious in this case — the reasonableness of the force used. 2020-04-06. Corrections report The Department of Justice has published the first report listing typographical and grammatical corrections made under paragraph 27(c) of the Legislation Revision and Consolidation Act. Ability to retreat or to respond by means other than the commission of an offence has been held by Canadian courts to be a relevant factor to a self-defence claim, but not a determinative requirement. For example, when facing a threat of force, a person may be in a position to steal a car to flee or break into a house to seek refuge. The accused's subjective belief (which must be objectively grounded) about the "unlawful" nature of the attack coming from the victim became a live issue. The addition of physical capability seems to me to be aiming at what the section was trying to achieve by saying that it has to take into account the person's circumstances. The nature of the threat to which the accused responds is clearly relevant to assessing the reasonableness of their reaction. The phrase "under his protection" was subject to varying interpretations. Reasons for change: Courts already appear to accept varieties of defensive conduct, at least in the context of defence of property. See discussion on March 8, 2012 between 1205 and 1235. Now, in the Lavallee case, to which Senator Di Nino and I think others have made reference, back in 1990 the Supreme Court addressed many of the myths about spousal abuse, spousal violence and self-defence arguments that could be brought in those cases by the abused spouse. C.A.). It aims to make clear that certain jurisprudence applicable to the determination of a successful defence is intended to continue, as appropriate, under the new law. (2d) 96 (Ont. If you are defending your self and two people happen to die as a result is different than you killing two people in self defense. Section 35 of the Criminal Code, one of the four sections on self-defence today, speaks directly to one such situation, namely where the initial instigator of an assault subsequently needs to act defensively because of the response of the other person. Pepper spray, commonly referred to by the brand name "Mace", can be used or carried by people as a potential mode of defence against potential attackers. Proportionality is almost surely going to be a highly relevant consideration in every self-defence case. The defensive response need not be characterized as "use of force". Therefore, I asked about how these two possibly apparently contradictory elements might play out. Some men do suffer violence at the hands of their spouses, but women aged 15 and older in 2010 accounted for 81 per cent of all those police-reported victims. The new law modifies this aspect of the defence and authorizes defensive action of any type – "the act committed is reasonable in the circumstances". Codifying that imminence is a factor to consider is intended to ensure that the courts do not treat it as a rigid requirement under subsection 34(1), as they did under the old law before the Lavallee decision.Footnote 15. Mike Kruse discusses what 'self defence' means in a legal sense. That connotes either one purpose and if there should be more than one, the controlling or dominant purpose. It is an ancient common law that was incorporated into the first Canadian Criminal Code in 1892. That was clearly the one that made me wonder if we were weakening the grounds of defence for battered women. Indeed, proportionality between threat and response is a critical lens through which to assess whether the response itself was a reasonable one. . In recognition of the difficulties involved in accurately assessing the precise amount of necessary or proportionate force in the heat of a confrontation – i.e. The new rule provided by subsection 34(3) is consistent with the way the old law applied to these circumstances, but it accomplishes its objective in a different way. Please see discussion above under paragraph 34(1)(c) – "reasonable in the circumstances". So for example, if you knocked the intruder(s) and rendered them unconscious, you will probably not be charged with assault under self-defence law. The new law eliminates the notion of "unlawful assault" which was a required element under old subsections 34(1) and(2) (but not under old section 35). Self-defence is a well-known defence in Canadian law justifying the use of force to repel an attack. Self defense is not a carte blanche to do what ever you want. Regardless of the nature or extent of the threat that a person perceives, the same test governs this first element of the defence in all cases. Remember that once the attacker is no longer a threat, you need to stop using lethal force to defend yourself. There are some other places we can look for guidance as to whether a self-defence action was “reasonable in the circumstances.” Remember, that is the criterion that must be met under the Criminal Code. The second portion of this paragraph – "whether there were other means available to respond" – could refer to a person's ability to retreat from the threat. This factor was added through an amendment by the House of Commons Standing Committee on Justice and Human Rights during its study of the legislation. 17 Secrets to Helping You Survive Your DUI Charge. That historic statement of gl… It is crucial to note that removal of the element of "unlawful assault" does not reflect Parliament's view that the facts surrounding the instigation of the assault are not relevant or that self-defence may regularly be invoked against lawful touchings. We will start with how self-defence is described in the Criminal Code of Canada, in particular, in section 34(1) of the Code. ), An important feature of the shift toward "reasonable in the circumstances" in the new law is the removal of the accused's subjective beliefs as a required element. The new law would make it clear that in the case of police action, self-defence is only available if the defender reasonably believes the police are acting unlawfully, such as by using excessive force. 455. what the accused honestly believed) and objective (i.e. Training Gear The CBSA has no restrictions against carrying or using plastic versions of their real counterparts, which means that you are able to carry these types of equipment! It also serves to provide some guidance about how the new law is intended to be applied by clarifying that some of the elements of the old law that have been eliminated as determinative requirements nonetheless continue to be relevant. The factor that is enumerated as (b) was also specifically designed to reflect that aspect of the Lavallee case, by saying it is a factor to consider, the extent to which the attack was imminent, which in and of itself is meant to signal that imminence is not a requirement. The old laws explicitly authorized defensive "use of force", as expressed in various ways, such as "no more force than is necessary" and "causes death or grievous bodily harm". The second assurance is located in proposed subsection 34(3), which deals with the most common claims of self-defence against lawful conduct, namely against police action such as arrest. 347. Size doesn't necessarily matter either. R. v. Szczerbaniwicz, [2010] 1 S.C.R. [p. 113], [20] The "proportionality" approach has more recently been characterized as an inquiry into whether the force used was "reasonable in all the circumstances", as Charron J. confirmed in R. v. Gunning, 2005 SCC 27 (CanLII), 2005 SCC 27, [2005] 1 S.C.R. It may also have posed difficulties in relation to attacks by persons below the age of criminal responsibility or suffering from delusions or otherwise not responsible for their conduct by reason of mental disorder. See for example R. v. Shuparski, 2003 SKCA 22: In relation to the evidentiary presumption that a person who occupied the driver's seat of a vehicle had the care or control of the vehicle unless they establish that they "did not occupy that seat or position for the purpose of setting the vehicle…in motion", which called upon the Sask CA to interpret the phrase "the purpose", the Court said: "The statute speaks to "the" purpose. 339 for an example of some of the challenges associated with determining whether the accused was "unlawfully assaulted" in a consensual fight situation. However, if the intruder(s) was retreating and you hit them in the head with a bat and he was critically injured, you might have a problem. Section 34(2) is available regardless of whether the assault was provoked. would the "reasonable person" also share the accused's belief) basis, consistent with the various versions of the old defence. Well, I’d rather neither be carried nor judged. Exceptions, limitations, and imperfect defense. (Note: This passage is also relevant to paragraph 34(2)(f)). We will start with how self-defence is described in the Criminal Code of Canada, in particular, in section 34(1) of the Code. Five years later, in SzczerbaniwiczFootnote 12, a case dealing with another version of the defence of property (section 39, which also uses the phrase "no more force than is necessary"), a majority of the SCC takes the approach one step further by expressly recognizing a shift toward "reasonableness" (emphasis added): [18]Section 39(1) is found in the Criminal Code together with other provisions setting out how the use of force in the defence of property and persons can be justified. Other factors include where the intruder was physically, what they were doing and any weapons that may have been in play. I was quite concerned about the impact of two of the factors that judges are told to take into consideration, because I wondered if they might be contradictory, and Senator Jaffer referred to these. In the unanimous decision of the SCC in GunningFootnote 11, the Court first suggested that reasonableness could be substituted for the concept of "no more force than is necessary" in the context of the defence of property (dwelling house) under section 41 of the Code. The list is expressly non-exhaustive, meaning that factors not on the list are still able to be put in evidence wherever relevant and otherwise admissible in accordance with general rules of evidence. not so little so as to make defensive action unsuccessful, but not any more than is required to enable the person to defend themselves successfully – courts were compelled to soften the tests with the adoption of the principle that a person in a threatening situation need not "weigh to a nicety" precisely how much force is necessary.Footnote 10 As a result, despite what appeared to be clear language in the Code, proportionality between the threat and the response or the necessity of the response given the threat were not in actuality to be strictly measured. There are very few situations in which an unwanted touching, which is by definition an assault, will not be unlawful. It's natural to assume that this should be a limiting condition of self-defence. 95-100, appeal allowed on other grounds, 2006 SCC 40 (CanLII), 2006 SCC 40, [2006] 2 S.C.R. Rather, some degree of flexibility had to be accorded to the accused in these assessments. In other words, a person occupying the driver's seat could have a dominant or controlling purpose and also one or more incidental, inchoate or contingent purposes. There is no requirement that the force be no more than is necessary to defend against the assault. This demonstrates that the SCC appears to have been willing to show some flexibility in interpreting and applying the wording of the old laws, and allowing the defences to be raised in defence to a broader category of offences than the wording of the law seemed to permit. Many Americans carry handguns, either openly or concealed, for self-defence—neither is a legal option in Canada. These are precisely the situations that lead people to need to react defensively. A rigid and abstract legal determination that focussed on whether one party was acting "unlawfully" may have failed to take into account relevant subtleties of the particular circumstances. Self Defence Law in Canada: Retreat or Not to Retreat? Among them, though, is the difficulty of measuring how often firearms are actually used for self-defense or protection. The random and brutal attack of a 25-year-old woman on Sep. 30 has generated a great deal of conversation in the Lethbridge community about personal safety.. The expressions "force is being used" and "threat of force is being made" are intended to be interpreted in accordance with the use of similar expressions and concepts in the assault provisions (section 265). Some people say that it is better to be judged by twelve than carried by six. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. It comes from Ms. Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada, who said: Both of those factors are derived almost directly from the Lavallee case, which was the leading case from the Supreme Court. Right of self-defense – Wikipedia, the free encyclopedia – The right of self-defense (according to U.S. law) (also called, … the right to possess a handgun in the home for the purpose of self-defense.” And, … a look at reasonable force as it applies in Canadian law. 25: There are four elements to the defence raised by Mr. Gunning: (1) he must have been in possession of the dwelling-house; (2) his possession must have been peaceable; (3) Mr. Charlie must have been a trespasser; and (4) the force used to eject the trespasser must have been reasonable in all the circumstances. Luckily Canada has updated their online resources to include an actual list of prohibited weapons, rather than leaving it open for guessing. R. v. Baxter (1975), 27 C.C.C. 41. First, the new law of self-defence would include an explicit "defensive purpose" requirement. It may also serve as a useful reference for jury instructions. In the overwhelming majority of cases, a defensive response to a threat will manifest as force against the attacker, but this may not always be the case. You could be a big character with disabilities or an inability to respond. The Firearms Act, included in the Criminal Code of Canada… The new law retains the test for the self-defence trigger. The court in that case said that is an assumption; the paradigm self-defence case is one where it is eminent (sic). Under the old laws, there was no express "defensive purpose" requirement. This factor in part serves to bring into play considerations surrounding the accused's own role in instigating or escalating the incident. You see it being used as a defence in movies and TV shows all the time. A Guide to Common Criminal Charges. "(emphasis added). (See: McKay, at paras. cases involving the reactions against the use of force by the police. In Baxter, several of the Criminal Code's defence of property and person provisions were at issue, including s. 34(1) (dealing with self-defence against unprovoked assault) and s. 41(1) (dealing with defence of house or real property). Reasons for the change: Under the new law, "reasonable in the circumstances" replaces the various combinations and expressions of "necessary" and "proportionate" force. The law, however, requires that the force used in defending oneself must not be out of proportion to the severity of the attack. The accused's subjective perception (objectively verified) of the existence of a threat is already a required element under new paragraph 34(1)(a). if the accused instigated the confrontation), Paragraph 34(2)(h) allows for consideration of the accused's knowledge of the lawful nature of the force they are responding to in determining whether their actions were reasonable (e.g. Our goal is to help you understand the elements that support a self-defence case. Criminal lawyer Howard Cohen adds that there is a "huge misconception" in Canada regarding the use of self-defence, and many people think they don't have any rights. Defence — use or threat of force Section 34 (1) states that: a person is not guilty of an offence if On the one hand, the law must permit a person to defend against any unwanted touchings, even of a trivial nature, because the application of any force without a person's consent is an assault and every person is entitled to govern their bodily integrity. Fight The Charges! This in turn requires the jury to determine what the accused believed about the intentions of the other party. Secondly, the SCC in recent years appears to have already begun to equate "proportionality/necessity" in the defences with "reasonableness". We did have some discussion about gender, and you can't just assume, because someone's one gender or another, that they're bigger or smaller or more or less capable. Section 34 (1) states that: a person is not guilty of an offence if. Generally, Canadian law gives residents a wide latitude to legally use violence to defend their home. Other situations in which this factor may be applicable are where a person uses force against someone who themselves may be acting to defend property (under new section 35) or who is attempting to make a citizen's arrest. Under the old law, the distinction between section 34 and 35 was based on the defender's role in commencing the incident, creating higher thresholds for accessing the defence where the accused was the provoker of the incident, as opposed to an innocent victim. R v Labrador, 2006 NSPC 28 (CanLII), per Crawford J: successful: R v Forde, 2011 ONCA 592 (CanLII), per LaForme JA: successful: appeal based on self-defence successful R v Spadafora, However, as a consequence of collapsing all defences into a single defence, the new law no longer distinguishes between differing levels of threat. I asked officials from the Justice Department when they appeared before us how we should understand the interplay between these two things, and I think the answer that was given is worth reading into the record. I would be pleased to provide further examples of such situations if you have additional questions on that. Rather, the requirement was removed primarily to simplify the fact-finding process, and secondarily to allow for the defence to be raised in rare cases where this it might be appropriate, notwithstanding that the person was responding to force that might have been lawful. This is also known as a “ duty to retreat .” While most states have removed this rule for instances involving the use of nonlethal force, many states still require that a person make an attempt to escape the situation before applying lethal force. Legislation first enacted in 1995 designated pepper spray as a prohibited weapon. It adds to a non-exhaustive list of the circumstances for the court to take into account. This is a serious problem in this country, honourable senators. A person who was the initial aggressor cannot claim self-defense as a justification unless they abandon the combat or the other party has responded with excessive force. imminence and ability to retreat or other options – are grammatically specified as separate and distinct factors, but are linked together in paragraph (b) because factually they are often intertwined and logically, the less imminent the threat is, the more likely there are to be other possible responses. Reasons for change: As noted above, a "reasonableness" test for the defensive response appears to reflect an approach consistent with that taken by the SCC. ; 2020-02-20. This in turn meant that the accused's perception of the attacker's intentions and perceptions also become a live issue. Hard Drugs Decriminalized: Changing Times, Changing Attitudes. Senator Joan Fraser, Senate Debates, June 12, 2012: However, because it does represent a change to the text of the law, consideration was given to including a mechanism to facilitate the transition to the new law. If Canadians have a right to effective self-defence then surely that right must extend beyond simply making a “911” call and then hunkering down and hoping for the best. Including the "nature of the force or threat" in the list of factors, a slightly more nuanced consideration, further ensures that this element is part of the overall assessment of the reasonableness of the defensive response. I think the wording of it is good: "physical capabilities." If imminence were a requirement, it would be in 34(1) —. See R. v. Paice, [2005] 1 S.C.R. (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and. Those latter purposes, by definition, are neither dominant nor controlling and do not qualify for "the" purpose. This avoids the possible complications associated with having to argue different defences, which set out different elements and thresholds, for different forms of conduct in response to the same threat (e.g. 3; R. v. McConnell, 1995 ABCA 291. . As noted in the previous review (Gabor, 1994: 60-65), surveys looking at whether people used a firearm to protect themselves, and how often they did so, faced serious definitional and methodological difficulties. One possible situation could be the authority (under the common law or provincial statutes) of hospital personnel to use force to restrain patients. A victim who has averted a crime by using a weapon may be less likely to report the crime, particularly in Canada, where the use of … . However, since the elimination of "unlawful assault" in principle permits a defensive response to lawful applications of force, a number of other features of the new law were introduced specifically to minimize the situations in which such conduct could be permitted: These provisions are discussed in greater detail later in this Guide. The accused must reasonably perceive a threat against the other person, must act with a defensive purpose, and their actions must be reasonable in the circumstances. For instance, if a petite woman commences shoving her much larger boyfriend, but due to her small size she presents no real threat to his bodily integrity and there is no risk of harm or injury, and the boyfriend responds to her force by punching her repeatedly, he would need to introduce some evidence that he was acting for the purpose of defending himself (rather than simply using the shoves as a pretext to respond violently) for his claim of "defensive purpose" to be found credible. The handling of the firearm was never characterized as amounting to "force" against the trespasser in accordance with the requirements set out in the legislative text. Statutory and case law governing self-defense is generally the same in tort and criminal law. through the use of a weapon) touchings of the body. C.A. 41; R. v. Pétel, [1994] 1 SCR 3 page 12; R. v. Reilly [1984] 2 SCR 396 page 404. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and. Under both Criminal Law and Tort Law, self-defense is commonly asserted in cases of Homicide, Assault and Battery, and other crimes involving the attempted use of violence against an individual. ), at para. This is what Senator Di Nino referred to yesterday when he was setting out the act's absolute requirements for a self-defence. (h) whether the act committed was in response to a use or threat of force that the person knew was lawful. Paragraph 34(3) expressly limits the most likely scenario involving a claim to self defence against lawful conduct, i.e. The use of force must be lawful both in the sense that the use of force in the circumstances must be a valid exercise of authority and that the manner and extent of force used must be reasonable to those circumstances. 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