Self Defence and the Canadian Law
Self Defence and Canadian Law
Canadian self defence law is a Federal jurisdiction, included in the Criminal Code of Canada (CCC). This means that one rule applies to all of Canada, unlike the myriad & often contradicting state laws governing defence in the United States.
In general, the defence of self-defence provides for the right of people to act in a manner that would be otherwise unlawful in order to preserve the physical integrity of themselves or others, or to prevent a crime. A person, if attacked, is entitled to use reasonable force to protect himself, others for whom he is responsible and his property.
How much force is “reasonable force”? It is normally defined as the minimal force required to deter or prevent an assault from occurring or being repeated. This would include removing yourself from a potentially violent situation before an assault occurs, verbal de-escalation, posturing, and physically defending oneself. When training in self defence it is important to practise scenarios that will allow you to assess the threat level and act accordingly. If you can leave safely without risking injury to yourself or another, then you must leave. If your are being assaulted or an assault is imminent then you should use only the amount of force necessary to stop the assault. You are not permitted to punish the assailant or seek revenge. You have to ask yourself the question “what would another reasonable person do in the same circumstances”.
By training this way you will be able to more appropriately respond to a violent altercation and protect yourself from physical harm and from prosecution by the law. Look at your self defence techniques and ask yourself if the amount of damage being inflicted on the assailant would be deemed reasonable for the type of assault. A smaller, weaker or more vulnerable person for example, may reasonably inflict more damage than a larger or stronger person in the same situation. It is important to “injure to degree” according to the threat.
The pertinent sections of the Canadian Criminal Code are CCC 34 – 37:
Section 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.
(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. c.C-34, s.34.]
Section 35.
Everyone 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 upon himself by another may justify the use of force sub-sequent to the assault if
(1) he uses the force
(a) from under reasonable apprehension of death or grievous bodily harm from the violence of the person provoked, and
(b) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(2) 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
(3) he declined further conflict and quitted or retreated as far as it was feasible to do so before he necessity of preserving himself from death or grievous bodily harm arose.
The need to retreat applies to a very special type of self defence case. Even if you assaulted another without any justification, or provoked an assault upon yourself by playing silly bugger out in public, you may still be justified in using of force IF:
· you become reasonably afraid that he is trying to kill you or seriously harm you;
· you believe on reasonable grounds that a use of force is necessary to save yourself from the impending violence
and IF you at no time tried to kill or seriously harm the other person first,
and IF (you) 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.
If you start the fight, there can normally be no claim to self defence, unless perhaps if the other person subsequently tries to kill you, (perhaps by a mass attack by his friends or by producing a weapon), if you are reasonably afraid of being killed or seriously hospitalised, and if you tried to retreat, but failed. In these cases, self defence might be justified if you fight back only with reasonable force to preserve your life.
Section 36.
Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures. [R.S. c.C-34, s.36.]
Section 37.
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.
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.]
Source:
Department of Justice Canada: Criminal Code. http://laws.justice.gc.ca/en/showdoc/cs/C-46/bo-ga:s_3_1-gb:s_34//en