Saturday, 20 August 2016

Self-Defence in Canada: Misconceptions and what you need to know

The fact of the matter is, whether we like it or not, much of Canadians' knowledge regarding "the justice system" comes from American television.  From fictional TV series like Law & Order, CSI: Crime Scene Investigation, and Criminal Minds, to true crime series like Dateline NBC and A&E's The First 48.  But, what most people don't seem to realize is that the Canadian justice system differs in regards to many aspects of its American counterpart.  This means that Canadians are inundated with a flurry of supposed knowledge that doesn't actually relate to their own criminal justice system, and system of rights and freedoms.

There are a number of aspects from the American justice system that have seemingly become apart of Canadians' knowledge regarding their own system, resulting in widespread ignorance on the matters.  First, you might often hear someone say "I plead the fifth," meaning they are exercising their fifth amendment right to remain silent in order to avoid self-incrimination.   That's all well and good—if you're American.  If you're a Canadian and you say that, however, just know that section 5 of the Canadian Charter of Rights and Freedoms refers to the annual sitting of Parliament.

What we as Canadians should be referencing is section 13 of Canadian Charter of Rights and Freedoms.  Though not quite so laid out, this section does provide Canadians the right to remain silent—or "plead the fifth" as some might continue to say.

Next in our series of American influenced justice-isms is the Miranda warning, or Miranda rights.  This is something I'm certain we've all heard at one point or another.  "You have the right to remain silent.  Anything you say can and will be used against you in the court of law.  You have a right to an attorney.  If you cannot afford one, one will be appointed to you..."  Easy, right?  Nope.  

While Canada does indeed have a Miranda warning similar to that which you often hear in American crime TV series, it's not quite the same.  It's more detailed and articulated than that which you hear on TV, often making sure the person being read the warning is aware of their rights.

Third—and this is just a means of clarification—in Canada, we don't have misdemeanours and felonies.  Instead, we have summary offences and indictable offences.

While these are mostly nitpicks of mine, it's still important for Canadians to be educated on their own justice system rather than that of our neighbours' to the south.  But don't worry.  The law is only all about technicalities, so being specific is only kind of important (yes, I am being facetious).  And while we're on that topic, just for future reference, know that ignorance is not a reasonable defence.  So, "I didn't know it was illegal" isn't going to fly.  But enough preamble.

This brings me to the main focus of this article: self-defence.  You're likely familiar with the concept, or at least know what it refers to.  This is yet another aspect where the Canadian version is far different than the American one that we so often see on TV and hear about in the news, so it's pretty important to be aware of the differences.

For example, in a number of American states, there is a law known as the "Stand Your Ground" law.  This law states that a person has no duty to retreat when faced with a threat or harm—meaning that as long as they're in a place that they're lawfully allowed to be, they can use any level of force necessary to cease the threat or harm that might come to them.  Meanwhile, if a Canadian comes face to face with an intruder in their own home and decides to use lethal force against the intruder, the home owner can be charged with a crime.  Let me explain.

Self-defence is all about the protection of yourself, as well as of the individuals in your care.  Thanks to sections 34 through 37 of the Criminal Code of Canada, Canadians have a right to self-defence.  But in Canada, it can be difficult to understand what exactly qualifies as self-defence, what is outside the boundaries of the law, and essentially what is acceptable and what is not.  

As Canadian law defines it, self-defence is, in simple terms, when a person is assaulted by another when they themselves have not instigated an assault upon another individual, have not provoked the attack, and their physical force in return is justified in order to prevent harm upon themselves, and the force is to the degree necessary, not excessive.  Basically, if Person A attacks Person B prior to Person B attacking Person A, Person B’s reactionary force is justified as self-defence as long as the force used is not excessive and is deemed as the amount of force necessary (Brudner 2011:878) to cease the attack, and Person B did not provoke the assault.

There are, of course, stipulations in terms of being classified as acceptable self-defence.  For instance, if the defensive force used is excessive to that of which is necessary to prevent harm or injury, that individual may be subject to punishment based on the use of excessive force, though this may often be looked over depending on the particular series of events that have taken place and the backgrounds of the individuals involved.  

For example, after having his store robbed numerous times, David Chen of Toronto reached his breaking point upon being robbed yet again.  As a result, Chen and a couple of store employees chased the culprit down, kidnapped, confined, and assaulted him until the police arrived (Canlii 2010).  

Using force to prevent a robbery is most often deemed justifiable.  However, once an attack and robbery have been stopped and the culprit has begun to flee, any further force used, in the eyes of Canadian law, is considered excessive and unjustified.  In this particular case, charges were brought against the store owner, David Chen, because the force that he used was initially deemed excessive.  Fortunately for Chen,  the charges were eventually dropped against him.  But each case is different, and individual cases’ results will vary.  This is why it's always important to understand what's legal and what isn't.  We may not like it, but the law's the law.

As long as they remain within the boundaries and limits of the law of self-defence, the individual or individuals defending themselves are protected by the law in which they may use the amount of force necessary to prevent grievous harm or death to themselves.  

So, if someone breaks into your home and attacks you, you certainly have the right to use force to cease the attack.  If you, for example, hit the intruder with a baseball bat, they stumble, but then come at you again, you can continue to use force against them until they stop.  But, if you hit the intruder with a baseball bat, they stumble and then run away, that is the extent of the force necessary to defend yourself.  If you decide to chase them from your house, catch up to them and continue to beat them with the baseball bat, you are now outside of your right to self-defence and you are now using excessive force, thereby assaulting the individual, and you may be charged with a crime.


It's all about being informed.  Don't take what you hear from TV as fact, because more often than not, especially as a Canadian, the information you're consuming doesn't actually apply to you.

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*Please note: this article is an opinion editorial and is not be taken as legal advice.

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References
1. Brudner, A. (Fall 2011). Constitutionalizing self-defence. University of Toronto Law Journal61(4), 867-897. 
 Retrieved from 
2. R. v. Chen et al., 2010 ONCJ 641 (CanLII), <http://canlii.ca/t/2f7qc

Appendix
Criminal Code of Canada s. 34-37
Defence of Person
Self-defence against unprovoked assault
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
Extent of justification
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F).


Self-defence in case of aggression
35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
R.S., c. C-34, s. 35.

Provocation
36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.
R.S., c. C-34, s. 36.

Preventing assault
37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
Extent of justification
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.


R.S., c. C-34, s. 37.

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