(emphasis added). (h) whether the act committed was in response to a use or threat of force that the person knew was lawful. We will start with how self-defence is described in the Criminal Code of Canada, in particular, in section 34(1) of the Code. Fight The Charges! Despite the clear wording of the legislative text, the Court set out the elements of the defence in the following words at para. Proportionality is almost surely going to be a highly relevant consideration in every self-defence case. Among them, though, is the difficulty of measuring how often firearms are actually used for self-defense or protection. Reasons for the change: Under the new law, "reasonable in the circumstances" replaces the various combinations and expressions of "necessary" and "proportionate" force. See also R. v. Pétel,  1 S.C.R. The new law modifies this aspect of the defence and authorizes defensive action of any type – "the act committed is reasonable in the circumstances". 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): 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. It is difficult to conceive of a defensive action being reasonable if it is disproportionate to the threat, absent exceptional circumstances. . However, a battered spouse situation is exactly one where the assault might not be imminent, but nonetheless the person would not reasonably feel themselves taking into account the history to have any option but to do what they did. In some versions of the defence it was framed as "no more force than necessary" or "as much force as is necessary". What are the Self Defence laws in Canada? 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. Generally speaking, the courts recognize that evidence about the relationship and history between the parties is crucial for putting the conflict in its proper context. 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. R. v. Szczerbaniwicz,  1 S.C.R. However, as a consequence of collapsing all defences into a single defence, the new law no longer distinguishes between differing levels of threat. While paragraph 34(2)(f) speaks to the relationship between the parties, paragraph 34(2)(f.1) refers to the potential for the parties to have a more peripheral connection to each other than that which would be implied by the word "relationship". As the new law contains only one defence that does not distinguish between conflicts commenced by the accused and those commenced by the victim, this paragraph signals that, where the facts suggest the accused played a role in bringing the conflict about, that fact should be taken into account in deliberations about whether his or her ultimate response was reasonable in the circumstances. Section 34 (1) states that: a person is not guilty of an offence if. 49-50; R. v. Born with a Tooth 1992 ABCA 244 (CanLII), (1992), 76 C.C.C. As you have mentioned, Mr. Harris, you could be a small person with a black belt in karate or something. In asking the jury to determine who attacked whom first, the jury must look to which actions constituted the first assault. 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. The phrase "under his protection" was subject to varying interpretations. In the Lavallee case, the SCC made clear that evidence of an abusive history between the parties, and expert evidence about the dynamics of domestic abuse on the victim, contextualize the accused's experience so as to allow their actions to be viewed and understood as objectively "reasonable" in the circumstances. For the first time, the Supreme Court gave an interpretation to the existing self-defence laws such that the situation of the battered woman could be taken into account. Law’s is a modern day martial arts school that retains traditional values and martial arts philosophy, but focuses more on practical self defense techniques. You may have a physical capability that the other person doesn't have, one that isn't necessarily covered just by the wording of "size", for instance. Only the fourth element was really contentious in this case — the reasonableness of the force used. A Guide to Bail: Because There is No Get Out of Jail Free Card, Why Choose Aitken Robertson to Defend Your Impaired Driving (DUI) and/or Criminal Charges. Items on the list are not intended to be treated as "more significant" or otherwise as having elevated relevance or weight relative to factors not on the list, or to each other. 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. This paragraph is intended to clearly signal that proportionality between threat and response remains a vital consideration in the new law. 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. 2020 Annual Report The Minister of Justice tabled the 2020 Annual Report prepared in accordance with the Statutes Repeal Act in the House of Commons on … 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". Under the old law, defence of a third person was provided for by section 37, which stated that a person may use force "to defend… anyone under his protection from assault". through the use of a weapon) touchings of the body. It could be that the common law defence of necessity would otherwise provide a defence for non-force responses to threats to bodily integrity emanating from other people. However, as these are factors to consider and not rigid requirements, the relationship they have to each other in any given case is a flexible matter that depends entirely on their relevance to the facts of that case. It's all on a case by case basis. Later in the decision, when the Court is applying the law to the facts before it, the unanimous Court says again: "The fourth element, the reasonableness of the force used, was more contentious" (at para 37), and again at para 38: "However, all of the events preceding the shooting had to be taken into account in determining whether Mr. Gunning had used reasonable force in his attempt to eject Mr. Charlie. orderlies in hospitals may have the authority under common law or provincial legislation to use force to restrain patients who pose a danger to themselves or others; the patient's knowledge that orderlies have this authority may be relevant to assessing the reasonableness of their defensive responses to such actions). Rather, a defensive purpose was implied by combination of the physical and mental elements of the applicable defence. Note: The element "physical capabilities" was added through an amendment the House of Commons Standing Committee on Justice and Human Rights, March 8, 2012, between 1200 and 1205: We've added this at the suggestion of the CBA. Justices Sharpe, Simmons, and Epstein JJ.A. Although not explicitly addressed in the new law, proportionality may also be relevant to assessing the accused's assertion that their actions were motivated by a defensive purpose; the more disproportionate the response relative to the threat, the more difficult it will be for the trier of fact to find that the purpose behind the response was defensive. The new law incorporates this more flexible approach to defences. 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.. 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. (3d) 19, at paras. 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. 3; R. v. McConnell, 1995 ABCA 291. Those latter purposes, by definition, are neither dominant nor controlling and do not qualify for "the" purpose. See e.g. 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. 41; R. v. Pétel,  1 SCR 3 page 12; R. v. Reilly  2 SCR 396 page 404. The law allows ownership, but not with the intent to use, even in self defense. (3d) 405 (Ont. Reasons for change: Courts already appear to accept varieties of defensive conduct, at least in the context of defence of property. Some people say that it is better to be judged by twelve than carried by six. Though not explicitly stated in the s. 34(2)(a), a further requirement that the accused have apprehend imminent danger at the time of the a… The specific reference to "any prior use or threat of force and the nature of that force" in this paragraph also serves to signal that Parliament was aware of the relevance of the history between the parties in the context of abusive relationships. 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). 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. Size doesn't necessarily matter either. (See also: R. v. George 2000 CanLII 5727 (ON CA) , (2000), 145 C.C.C. 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 use of the definite article "the" before "purpose" is intended to be interpreted such that in order for the defence to succeed, the accused's sole purpose is, or, where there is more than one purpose, the accused's dominant or controlling purpose, is to defend themselves or another person from the perceived threat.Footnote 9. 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. C.A. You could be a big character with disabilities or an inability to respond. if a person threatened uses force and also commits breaks into a house to seek refuge where the force did not stop the attack). Where the person assaulted used the initial assault as an excuse to respond with force of their own, the initial aggressor may have subsequently needed to use defensive force to protect him or herself, even though they might be responsible for starting the altercation and thus might be responding to force that is potentially "lawful"because it might technically have been force used in self-defence. The laws around self-defence are a grey area — the criminal code states a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act. Paragraph 34(2)(f) makes clear that the history of the relationship, and any abuse within it, are relevant to assessing the reasonableness of the accused's defensive actions, and thereby signals that courts should continue to apply the principles from Lavallee under the framework of the new law. 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. This is not a traditional martial arts school. The Firearms Act, included in the Criminal Code of Canada… . Exceptions, limitations, and imperfect defense. Rather, some degree of flexibility had to be accorded to the accused in these assessments. I think our view would be that both of those factors are entirely consistent with the reasons of the Supreme Court in Lavallee. 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). Generally, Canadian law gives residents a wide latitude to legally use violence to defend their home. Defence — use or threat of force Section 34 (1) states that: a person is not guilty of an offence if On the other hand, the police must use force for certain purposes, such as when making an arrest. There is no requirement that the force be no more than is necessary to defend against the assault. . The law, however, requires that the force used in defending oneself must not be out of proportion to the severity of the attack. This paragraph is not intended to overlap with the special rule for defensive action against police conduct (subsection 34(3)) below), as that special rule provides a complete test for those circumstances. Honourable senators, given that, as Senator Baker has so regularly instructed us, we know reference is sometimes made to debates in this chamber when thorny issues of law are being considered, I did think that was worth putting into the formal record of the Senate. 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. 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. That connotes either one purpose and if there should be more than one, the controlling or dominant purpose. 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. 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. 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. (2d) 96 (Ont. Imminence of an attack was long thought to be a required element of self-defence until the SCC ruled in Lavallee that it was only a factor to be considered, as opposed to a requirement that could be determinative of the success of a self-defence claim.Footnote 14 The first portion of paragraph (b) – "the extent to which the use of force was imminent" – codifies this aspect of Lavallee. In a nutshell, a person who is unlawfully assaulted without having provoked the assault is justified in repelling force by using force IF the force used is not intended to cause death or grievous bodily harm AND is no more than is necessary to enable self-defence. 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, . It is certainly true that the overwhelming majority of self-defence cases involve responses to unlawful attacks. In Gunning, the defence of property was held to be available to charge of careless use of a firearm. The two elements – i.e. The new law retains the test for the self-defence trigger. While s. 39(1) itself has yet to be interpreted by this Court, there is helpful analogous jurisprudence dealing with these other provisions, most of which use similar or identical language to the phrase "no more force than is necessary" found in s. 39(1). 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. ), at para. 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. These problems are not presented in this report in detail. Police conduct that does not meet these requirements is unlawful, and citizens are legally entitled to resist such applications of force by the police where they reasonably believe such force to be unlawful in the circumstances. Reasons for change: This change reflects the way in which the new law adopts a simplified approach to self-defence. The Criminal Code does allow for homeowners to use “reasonable force” when defending their property, after the former Stephen Harper government brought about … Section 84 simply states, In others, it was framed in terms of conditions indicating a blend of necessity and proportionality (i.e. Even though the "defensive purpose" requirement may be enough to ensure that the defence fails in cases where force is used to escape or impede law enforcement activity, subsection 34(3) provides an additional layer of protection against inappropriate uses of self-defence in these cases by directing the inquiry to the unique considerations such cases raise. (3d) 169 (Alta. The original laws regarding self-defense required people claiming self-defense to first make an attempt to avoid the violence before using force. 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 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 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. 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. ; 2020-02-20. However, in paragraph 21 above from Szczerbaniwicz, the SCC makes clear that even where the test is objective, the subjective perceptions of the accused (so long as they are also objectively reasonable perceptions) remain relevant to the assessment of whether their actions were reasonable in the circumstances. 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. Self Defence Law in Canada: Retreat or Not to Retreat? Mike Kruse discusses what 'self defence' means in a legal sense. Legislation first enacted in 1995 designated pepper spray as a prohibited weapon. In proposed section 34(2)(b), the judges are asked to take into account if the circumstances are appropriate, 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. The nature of the threat to which the accused responds is clearly relevant to assessing the reasonableness of their reaction. It may be that the Court headed in this direction in recognition of the fact that the added "flexibility" that Baxter and other cases demand dilutes the notions of proportionality and necessity to such a degree that they become essentially analogous to reasonableness. 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. It is important that you consult a criminal defence lawyer to better understand if this defence is available to you. I was only partly assuaged by the existence of proposed section 34(2)(f) which says the judge should take into account 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. Our goal is to help you understand the elements that support a self-defence case. It is an ancient common law that was incorporated into the first Canadian Criminal Code in 1892. Please see discussion above under paragraph 34(1)(c) – "reasonable in the circumstances". 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). — but because it is in 34(2) as a factor to consider, as opposed to a requirement of self-defence, it signals that imminence is a factor to consider and the person's perceptions about other options they might have had is also a factor to consider. However, there are rare circumstances in which a person should be entitled to act defensively against an attack that is not necessarily unlawful. 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. See R. v. Paice,  1 S.C.R. 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. 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. 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. 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. 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