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. There is no requirement that the force be no more than is necessary to defend against the assault. If imminence were a requirement, it would be in 34(1) —. These are precisely the situations that lead people to need to react defensively. On the other hand, the police must use force for certain purposes, such as when making an arrest. I think the wording of it is good: "physical capabilities." 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. (Of course, this evidence may also be relevant to assessing the reasonable belief about an incoming threat under paragraph 34(1)(a) and the subjective defensive purpose under paragraph 34(1)(b)). You might already be familiar with the term, “self-defence”. 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. Reasons for change: This change reflects the way in which the new law adopts a simplified approach to self-defence. This in turn meant that the accused's perception of the attacker's intentions and perceptions also become a live issue. That seems reasonable, and when you put it together with the other factors that are enunciated and the nature and proportionality of the person's response to that threat, it makes a lot of sense. The new law codifies this approach, which is consistent with the general approach of the new law to treat as many factors as possible as "relevant considerations" rather than rigid requirements for the defence.Footnote 13. This was especially challenging in cases involving small scuffles that escalated into violent confrontations, where it became critical to determine whose conduct first amounted to an "unlawful assault", as that in turn governed which person has recourse to which version of the defence. Section 40 of the Criminal Code states: “everyone who is in possession of a dwelling house is justified in using as much force as necessary, to prevent any person from forcibly breaking into or entering the dwelling house without lawful authority.”. It ensures that where triggering circumstances are present (i.e. Any one of them may qualify as "a" purpose, but that is not the way the statute is worded.". 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. 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. The new law retains the test for the self-defence trigger. 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. It is difficult to conceive of a defensive action being reasonable if it is disproportionate to the threat, absent exceptional circumstances. The new framework of the defence is one that can be applied to cases where actions were taken in defence of third party. 23. Mike Kruse discusses what 'self defence' means in a legal sense. Across Canada, 129 law enforcement agencies were using CEWs by the end of 2010. Hard Drugs Decriminalized: Changing Times, Changing Attitudes. You are allowed to defend yourself not use force excessively in doing so. 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 trigger conditions either expressly required or were interpreted by courts to require the accused to have an honest and reasonable belief as to the existence of an assault or threat of death or grievous bodily harm. Despite the clear wording of the legislative text, the Court set out the elements of the defence in the following words at para. (3d) 169 (Alta. (See: McKay, at paras. 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. 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. This case went all the way to the Supreme Court, and it was a landmark judgment instructing courts to take into account expert testimony about the effect of being an abused spouse, a feeling of having nowhere to go, nowhere to turn, no escape, and sometimes being driven to commit very serious violence in order, one believes, to defend oneself, even if that defence is not specifically necessary because one is not being abused at that precise moment. Please see paragraph 34(2)(b) above for the relevant Parliamentary excerpt. See discussion on March 8, 2012 between 1205 and 1235. 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. 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; 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. House of Commons Standing Committee on Justice and Human Rights, March 6, 2012: Joanne Klineberg, Senior Counsel, Department of Justice: Professor Stewart also testified before you that self-defence should be limited to responses to unlawful assaults. It is well know under Canadian law that when it comes to defending yourself in the privacy of your home, you have significant legal rights to do so. (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. 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. See also R. v. Pétel, [1994] 1 S.C.R. 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). This factor in part serves to bring into play considerations surrounding the accused's own role in instigating or escalating the incident. First, the concept of "reasonableness" is both slightly broader than the concepts of necessity and proportionality, and it is also more flexible. This element complicates trials unnecessarily by placing the focus on the early stages of a confrontation. That historic statement of gl… observed: The sections of the Code authorizing the use of force in defence of a person or property, to prevent crime, and to apprehend offenders, in general, express in greater detail the great principle of the common law that the use of force in such circumstances is subject to the restriction that the force used is necessary; that is, that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or harm it is intended to prevent . You could be a big character with disabilities or an inability to respond. 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. 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. That is essentially what 34(2)(f) is trying to get at; in determining what is reasonable you would have to consider the history of the relationship. 227. 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) 96 (Ont. This paragraph is intended to clearly signal that proportionality between threat and response remains a vital consideration in the new law. Reasons for change: Courts already appear to accept varieties of defensive conduct, at least in the context of defence of property. 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. In Gunning, the defence of property was held to be available to charge of careless use of a firearm. 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. Let’s consider protecting your property rights and how self-defence comes into play. 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. The phrase "under his protection" was subject to varying interpretations. The removal of this element is not a cause for concern for two reasons. 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". 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. However, there are rare circumstances in which a person should be entitled to act defensively against an attack that is not necessarily unlawful. 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 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. While the requirement under paragraph 34(1)(a) may be met in these cases, the express "defensive purpose" requirement (paragraph 34(1)(b) may effectively rule out the defence in cases where the accused used force against the police in an effort to escape arrest or to otherwise evade or frustrate whatever action the police are undertaking. 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. First, the new law of self-defence would include an explicit "defensive purpose" requirement. . Unlike our neighbours to the south, Canada does not allow it’s citizens to carry – or even own – firearms for the purpose of self defence against human beings. 3; R. v. McConnell, 1995 ABCA 291. Approval by the police that both of those factors are entirely consistent with intent... `` the '' purpose, but not with the various versions of circumstances... 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