The requirement under the old law that the force threatened was "unlawful" complicated the fact finding process, especially when combined with a mixed subjective/objective assessment of the threat. 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 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. This in turn requires the jury to determine what the accused believed about the intentions of the other party. Proportionality is almost surely going to be a highly relevant consideration in every self-defence case. 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. 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). It is important that you consult a criminal defence lawyer to better understand if this defence is available to you. So, learn your laws! It's natural to assume that this should be a limiting condition of self-defence. If size, age, and gender are important, then the physical capabilities certainly would be too. A Guide to Common Criminal Charges. Nothing in the language of s. 39(1) suggests that the meaning of the words "no more force than is necessary" is different from these other provisions. Notwithstanding its interpretation by the SCC in, Paragraph 34(1)(b) – the defence now requires some evidence that the accused's purpose was defensive in nature (e.g. 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. 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. This is not a traditional martial arts school. Secondly, the SCC in recent years appears to have already begun to equate "proportionality/necessity" in the defences with "reasonableness". This paragraph is in part responsive to the fact that the new law does not require that the incoming force be "unlawful", as does the old section 34 (but not section 35). It may also serve as a useful reference for jury instructions. 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. 627, at para. 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. 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! Generally, Canadian law gives residents a wide latitude to legally use violence to defend their home. 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. (3d) 24, at para. The nature of the threat to which the accused responds is clearly relevant to assessing the reasonableness of their reaction. 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, 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. 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 84 simply states, 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. In asking the jury to determine who attacked whom first, the jury must look to which actions constituted the first assault. 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. 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. Reasons for change: This change reflects the way in which the new law adopts a simplified approach to self-defence. According to the Criminal Code, for a property owner, specifically, a dwelling house, is the property you are allowed to protect the most. (Note: This passage is also relevant to paragraph 34(2)(f)). CA); Brisson v. The Queen,  2 S.C.R. It adds to a non-exhaustive list of the circumstances for the court to take into account. Reasons for the change: Under the new law, "reasonable in the circumstances" replaces the various combinations and expressions of "necessary" and "proportionate" force. Remember that once the attacker is no longer a threat, you need to stop using lethal force to defend yourself. Please see paragraph 34(2)(b) above for the relevant Parliamentary excerpt. 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. 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. 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. 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. I would be pleased to provide further examples of such situations if you have additional questions on that. The most important thing the Supreme Court determined in that case was that whenever there is an aspect of reasonableness in the law of self-defence, it is important to consider the particular circumstances of an abused person — and the nature of their relationship — and attribute that to the reasonable person. resisting an attempt by a shopkeeper to make a citizen's arrest after a theft in order to escape would not satisfy this requirement), Paragraph 34(2)(c) allows for consideration of the accused's role in the incident in determining whether their actions were reasonable (e.g. 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. This is what Senator Di Nino referred to yesterday when he was setting out the act's absolute requirements for a self-defence. This element complicates trials unnecessarily by placing the focus on the early stages of a confrontation. I think the wording of it is good: "physical capabilities." This in turn meant that the accused's perception of the attacker's intentions and perceptions also become a live issue. 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). This blog will focus on self-defence law in Canada. Well, I’d rather neither be carried nor judged. See also R, v, Kong, 2005 ABCA 255, dissent cited with approval by the SCC in Szczerbaniwicz. 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. The unlawful attack element is also removed because it causes a great deal of difficulty under the current law. C.A. 41. 227. The test asks whether the "reasonable person", if placed in the accused's situation, would have acted in a similar manner. 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. See R. v. Paice,  1 S.C.R. 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. (c) the act committed is reasonable in the circumstances. 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). ), at p. 180; R. v. Kong, 2005 ABCA 255 (CanLII), 2005 ABCA 255, 200 C.C.C. self-defence under s.37 unsuccessful R v JES, 2009 NSSC 373 (CanLII), per Moir J: successful: victim attacked accused twice, accused stabbed him with knife. It is an ancient common law that was incorporated into the first Canadian Criminal Code in 1892. Across Canada, 129 law enforcement agencies were using CEWs by the end of 2010. These are precisely the situations that lead people to need to react defensively. — 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. The list serves several purposes. The law, however, requires that the force used in defending oneself must not be out of proportion to the severity of the attack. 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 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. Reasons for change: Courts already appear to accept varieties of defensive conduct, at least in the context of defence of property. 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. What are the Self Defence laws in Canada? 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. . (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. (3d) 19, at paras. 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 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. 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. 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. 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. R. v. Baxter (1975), 27 C.C.C. The corollary to an honest and reasonable belief is that beliefs that are reasonable but mistaken will still allow the defence to be raised.Footnote 6. You could be a big character with disabilities or an inability to respond. 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. 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. These problems are not presented in this report in detail. Indeed, proportionality between threat and response is a critical lens through which to assess whether the response itself was a reasonable one. Among them, though, is the difficulty of measuring how often firearms are actually used for self-defense or protection. …[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. (h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (emphasis added). Many Americans carry handguns, either openly or concealed, for self-defence—neither is a legal option in Canada.  One of the early — and cogent — examinations of the meaning of the phrase is found in R. v. Baxter (1975), 27 C.C.C. if a person threatened uses force and also commits breaks into a house to seek refuge where the force did not stop the attack). See discussion on March 8, 2012 between 1205 and 1235. Essentially the court said that where battered women's cases had previously not resulted in a successful self-defence plea was because the jury could not appreciate how a reasonable person in that woman's situation would not have left the relationship sooner, or how they might have perceived they were at risk. (2d) 96 (Ont. It ensures that where triggering circumstances are present (i.e. In Canada they look at reasonable force. One possible situation could be the authority (under the common law or provincial statutes) of hospital personnel to use force to restrain patients. R. v. Cinous,  2 SCR 3 para. In interpreting these provisions, Martin J.A. 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. 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. Exceptions, limitations, and imperfect defense. 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. 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. 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