self defense laws canada
23-24; George, at paras. 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. if a person threatened uses force and also commits breaks into a house to seek refuge where the force did not stop the attack). ),  The reasonableness of "all the circumstances" necessarily includes the accused's subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required: the subjective belief must be based on reasonable grounds. Section 34(2) is available regardless of whether the assault was provoked. 95-100, appeal allowed on other grounds, 2006 SCC 40 (CanLII), 2006 SCC 40,  2 S.C.R. ; 2020-02-20. Self defense laws vary by state. (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. The law, however, requires that the force used in defending oneself must not be out of proportion to the severity of the attack. 41. [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. The concept of "force" is generally understood in criminal law terms to refer to direct or indirect (i.e. (3d) 96 (Ont. That connotes either one purpose and if there should be more than one, the controlling or dominant purpose. 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. But … 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. 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. 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, the new law seeks to incorporate such conduct into the defence of person provision. It is important that you consult a criminal defence lawyer to better understand if this defence is available to you. a reasonably based belief in a threat or application of force) but the primary purpose of resistance is something other than defence of a person's bodily integrity, the defence will not succeed. Indeed, proportionality between threat and response is a critical lens through which to assess whether the response itself was a reasonable one. This blog will focus on self-defence law in Canada. You are allowed to defend yourself not use force excessively in doing so. The original laws regarding self-defense required people claiming self-defense to first make an attempt to avoid the violence before using force. 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. These are precisely the situations that lead people to need to react defensively. If size, age, and gender are important, then the physical capabilities certainly would be too. 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. 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. In others, it was framed in terms of conditions indicating a blend of necessity and proportionality (i.e. Many Americans carry handguns, either openly or concealed, for self-defence—neither is a legal option in Canada. The Firearms Act, included in the Criminal Code of Canada… The defensive response need not be characterized as "use of force". 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). 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. First, let’s take a look at the Canadian Criminal Code. Self-defence is a well-known defence in Canadian law justifying the use of force to repel an attack. 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 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 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. 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". 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. (See also: R. v. George 2000 CanLII 5727 (ON CA) , (2000), 145 C.C.C. 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. CA); Brisson v. The Queen,  2 S.C.R. The nature of the threat to which the accused responds is clearly relevant to assessing the reasonableness of their reaction. (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. Fight The Charges! Across Canada, 129 law enforcement agencies were using CEWs by the end of 2010. (h) whether the act committed was in response to a use or threat of force that the person knew was lawful. This in turn requires the jury to determine what the accused believed about the intentions of the other party. We will start with how self-defence is described in the Criminal Code of Canada, in particular, in section 34(1) of the Code. 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. Paragraph (b) of the list of considerations codifies the understanding that "other options" and "retreat" may be relevant to a defence of person claim, but are not determinative. 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). 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. 3; R. v. McConnell, 1995 ABCA 291. 227. 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. That was clearly the one that made me wonder if we were weakening the grounds of defence for battered women. However, there are rare circumstances in which a person should be entitled to act defensively against an attack that is not necessarily unlawful. . 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). In other words, you can use significant force as necessary to remove an uninvited intruder from the house and eliminate the threat to yourself. 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.. Legislation first enacted in 1995 designated pepper spray as a prohibited weapon. "(emphasis added). 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. C.A. 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. 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. 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. Ms. Lavallee was a woman who had been repeatedly and severely abused, and one night her partner told her that later that night he was going to kill her, and she believed him, so she shot him, dead. This use of force by police is authorized by law, but is not unfettered. 339 for an example of some of the challenges associated with determining whether the accused was "unlawfully assaulted" in a consensual fight situation. 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. Rather, some degree of flexibility had to be accorded to the accused in these assessments. It adds to a non-exhaustive list of the circumstances for the court to take into account. (2d) 96 (Ont. . 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. There are very few situations in which an unwanted touching, which is by definition an assault, will not be unlawful. 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. 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. The test asks whether the "reasonable person", if placed in the accused's situation, would have acted in a similar manner. (Note: This passage is also relevant to paragraph 34(2)(f)). Section 34 (1) states that: a person is not guilty of an offence if. 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 … 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 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. In effect, reasonableness is a larger concept that would logically include considerations of necessity and proportionality, as well as other relevant factors. 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. Generally, Canadian law gives residents a wide latitude to legally use violence to defend their home. In Gunning, the defence of property was held to be available to charge of careless use of a firearm. Any one of them may qualify as "a" purpose, but that is not the way the statute is worded.". R. v. Baxter (1975), 27 C.C.C. It expressly requires that the triggering threat be assessed on a combined subjective (i.e. The elimination of the "unlawful assault" requirement as part of the triggering threat element creates potential unwanted consequences in relation to resistance to police actions, because it could leave the impression that the new law will allow defensive reactions to lawful police conduct such as the making of an arrest. The phrase "under his protection" was subject to varying interpretations. The accused's subjective perception (objectively verified) of the existence of a threat is already a required element under new paragraph 34(1)(a). 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. 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… R. v. 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