(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)). 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; (3d) 405 (Ont. A Guide to Common Criminal Charges. 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. 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. 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. 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. Section 34(2) is available regardless of whether the assault was provoked. what the accused honestly believed) and objective (i.e. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary. 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. It is clear that "reasonable" is an objective test. 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. However, under the new law, the nature and degree of the threat may impact differently upon the determination of whether the accused genuinely responded with a defensive purpose (under paragraph 34(1)(b), and whether the actions taken were reasonable in the circumstances (under paragraph 34(1)(c) and as set out in the list of factors under subsection 34(2)). 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. This is because the defensive purpose element requires the accused to present some evidence that their dominant purpose was to protect their bodily integrity from the incoming force, as opposed to the purpose of escaping capture, for instance. 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. First, the concept of "reasonableness" is both slightly broader than the concepts of necessity and proportionality, and it is also more flexible. 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. 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). In effect, reasonableness is a larger concept that would logically include considerations of necessity and proportionality, as well as other relevant factors. In 2010, police reported approximately 48,700 victims of spousal violence in this country and, if you hear people talk about the battered women defence, it is not because men are immune from spousal violence. 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. [p. 113],  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,  1 S.C.R. — 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. Legislation first enacted in 1995 designated pepper spray as a prohibited weapon. 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. With respect to the extent of the justification, a person who is unlawfully assaulted and causes death or grievous bodily harm, can be justified in his or her self-defence actions so long as he or she believed, on reasonable grounds, that he or she could not have otherwise preserved him or herself from death or grievous bodily harm at the hands of the perpetrator. 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). 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. 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. . The presence of weapons by any party to a conflict will likely be relevant to the determination of what would be an acceptable defensive response. Under the old laws, the measure for acceptable defensive force was articulated in various ways. 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. 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 . This in turn meant that the accused's perception of the attacker's intentions and perceptions also become a live issue. 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. Rather, some degree of flexibility had to be accorded to the accused in these assessments. Senator Joan Fraser, Senate Debates, June 12, 2012: through the use of a weapon) touchings of the body. 25, a case involving s. 41(1). (See also: R. v. George 2000 CanLII 5727 (ON CA) , (2000), 145 C.C.C. 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". Across Canada, 129 law enforcement agencies were using CEWs by the end of 2010. 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. 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 … (2d) 96 (Ont. . If the aggressor has abandoned the combat, they normally must attempt to communicate that abandonment to the other party. It adds to a non-exhaustive list of the circumstances for the court to take into account. However, there are rare circumstances in which a person should be entitled to act defensively against an attack that is not necessarily unlawful. 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. 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. Remember that once the attacker is no longer a threat, you need to stop using lethal force to defend yourself. You might already be familiar with the term, “self-defence”. The court in that case said that is an assumption; the paradigm self-defence case is one where it is eminent (sic). 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. 455. 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. The less a defensive response is proportionate to the threat or necessary to enable the person to defend themselves in those circumstances, the less likely it is to be characterized by the trier of fact as "reasonable" in the circumstances. (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. In interpreting these provisions, Martin J.A. It is important that you consult a criminal defence lawyer to better understand if this defence is available to you. 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. 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. 49-50; R. v. Born with a Tooth 1992 ABCA 244 (CanLII), (1992), 76 C.C.C. Therefore, I asked about how these two possibly apparently contradictory elements might play out. 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. See also R. v. Pétel,  1 S.C.R. Our goal is to help you understand the elements that support a self-defence case. The law, however, requires that the force used in defending oneself must not be out of proportion to the severity of the attack. 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. 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. Self defense is not a carte blanche to do what ever you want. If size, age, and gender are important, then the physical capabilities certainly would be too. This factor in part serves to bring into play considerations surrounding the accused's own role in instigating or escalating the incident. The Criminal Code does allow for homeowners to use “reasonable force” when defending their property, after the former Stephen Harper government brought about … 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. 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. 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. CA); Brisson v. The Queen,  2 S.C.R. 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. The nature of the threat to which the accused responds is clearly relevant to assessing the reasonableness of their reaction. 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. 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. 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. In other words, you can use significant force as necessary to remove an uninvited intruder from the house and eliminate the threat to yourself. 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. 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. We agree with this. While the new law does not expressly address the admissibility of expert evidence, the normal rules of evidence should ensure that such evidence is admissible where it otherwise meets the requirements of expert evidence in any given case. 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. These problems are not presented in this report in detail. Reasons for change: This change reflects the way in which the new law adopts a simplified approach to self-defence. So, learn your laws! 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. Please see paragraph 34(2)(b) above for the relevant Parliamentary excerpt. …[T]he right of self-defence commences when the necessity for such defence begins and it terminates when the necessity for such self-defence comes to an end. would the "reasonable person" also share the accused's belief) basis, consistent with the various versions of the old defence. Any one of them may qualify as "a" purpose, but that is not the way the statute is worded.". 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. 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. 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. (3d) 96 (Ont. (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. 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. Reasons for the change: Under the new law, "reasonable in the circumstances" replaces the various combinations and expressions of "necessary" and "proportionate" force. 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. Many Americans carry handguns, either openly or concealed, for self-defence—neither is a legal option in Canada. Among them, though, is the difficulty of measuring how often firearms are actually used for self-defense or protection. Please see discussion above under paragraph 34(1)(c) – "reasonable in the circumstances". Rather paragraph (h) may apply to other circumstances, which are sure to be rare, in which non-law enforcement personnel may have the lawful authority to touch others without their consent. More specifically, if a person does not willingly submit to an arrest, they may have a reasonable perception that they are being threatened with force that is against their wishes and consequently meet the first requirement for the new defence under paragraph 34(1)(a). There are two reasons for this change. It is an ancient common law that was incorporated into the first Canadian Criminal Code in 1892. 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. Mike Kruse discusses what 'self defence' means in a legal sense. 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). 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. Under the new law, only force which is actually used for the purpose of self-defence (or defence of another) is permitted. This means that in any case where a person uses force against someone acting lawfully, they will not have the benefit of self-defence unless they were found to be genuinely acting defensively, and not for another purpose. The requirement for "unlawful assault" might have also unfairly limited the defence in rare cases, such as cases where a person who unlawfully committed a relatively trivial assault against another was actually in a much weaker position relative to the person assaulted. 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. 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 incorporates this more flexible approach to defences. SUMMARY This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. Only the fourth element was really contentious in this case — the reasonableness of the force used. However, the new law seeks to incorporate such conduct into the defence of person provision. The defensive response need not be characterized as "use of force". Luckily Canada has updated their online resources to include an actual list of prohibited weapons, rather than leaving it open for guessing. Law’s School of Self Defense is a unique martial arts school in Duncan BC, that specializes in practical street defense training. 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. See R. v. Paice,  1 S.C.R. Secondly, the SCC in recent years appears to have already begun to equate "proportionality/necessity" in the defences with "reasonableness". The relevant SCC jurisprudence is set out below and may be helpful in explaining to courts that the new law is intended to be interpreted and applied in manner that closely matches the old law. 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 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. The two elements – i.e. It's far preferable to focus attention on the thoughts and actions of the defender at the time when they committed the actions they are charged with. "(emphasis added). 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). 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. 347. 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. Section 34 (1) states that: a person is not guilty of an offence if. 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.”. 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! 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