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midgetcop said:
Oh...those Canadians should be carefull EH!
Self Defence and Protecting Canadians
- Thread starter Infanteer
- Start date
Oh...those Canadians should be carefull EH!
Hatchet Man said:
Yes they are. Who decides what "reasonable" means? Not you, not the intruder, and in fact, "reasonableness" isn't decided until after the incident. What is and what is not reasonable has not been laid out as I believe it should.
Hatchet Man said:
Too vague? Like the Criminal Code of Canada? Allow me to clarify my scenario. She's a foot shorter than I am, and 40 lbs lighter, unarmed, climbing through a window, and maybe smoked a little crank. If I were to crack her skull open with my fist, I would probably be charged with aggravated assault.
The fact that you would even consider the gender, physical size and mental state of the intruder proves exactly what is wrong with the "reasonableness" standard. All that shouldn't matter. If they're breaking in to your house, they're breaking into your house. Do whatever you need to do to stop them.
Hatchet Man said:
Well, you can't be sure if their intention is just to steal stuff or to kill you.
But, the Criminal Code says you can use reasonable force, and what is reasonable is not decided until after the incident. What is reasonable certainly doesn't include shooting an intruder, because for one, you're not supposed to have easy access to your firearms. But you don't know if the person is just breaking in to steal your TV, or if they're coming in with a stick of dynamite because a hollowed-out light bulb filled with meth told them you were Satan. Either way, in think in most indictable crimes, the victim is always right, and should be allowed to do whatever they need to do to stop that crime, so long as it doesn't involve crimes against individuals other than the attacker.
midgetcop said:
Until the police can appear at the scene of a crime before it occurs, it will be necessary for people to take the law into their own hands. This can be done legally, if government would allow it.
They do allow it. As a citizen, you have the power of arrest.
Abuse it, and you are in trouble, but citizens often 'detain' criminals and wait for the police.
The authorities officially frown on this, as it breaks their rice bowl, but unofficially, moststreet cops appreciate it.
Tom
Abuse it, and you are in trouble, but citizens often 'detain' criminals and wait for the police.
The authorities officially frown on this, as it breaks their rice bowl, but unofficially, moststreet cops appreciate it.
Tom
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NO it isn't. Go pick up a copy of an annotated Criminal Code (you can find them in college/university bookstores), it provides explains the meanings of terms like "reasonableness" and provides case law to illustrate the law in action. Or seeing as how you are a student at U of T take some law classes. As the use of force wheel used by police angencies in Ontario is certainly applicable to civillians (especially since most security companies use it and they are civillians)R0B said:
In this case yes you would be charged, and yeah I would agree with it. If she is unarmed, and passive (ie not acting out wildly), then cracking her in the head right off the bat is excessive. If other passive/less forceful means failed to get her to leave then you can crack her one. There is no one size fits all response, and to try and make one will be fraught with many challenges both in criminal and CIVIL court. You can do what you need to stop a person, but that does not mean always mean automatically jumping to highest level of response in the use of force. Even the military must take into account multiple aspects of a situation before they use can deadly force. And based on your premise that gender/size/mental state shouldn't matter then police can just beat people or shoot them at will.
It doesn't matter if they are going to steal from you or kill you, if the intruder makes you fear for your life, AND they have the means to take your life you can use deadly force. BOTH must be present. As for the firearms, please point out in the Firearms Act or the Criminal Code where it says you can't have easy access to your firearms. You can have easy access and still follow the law (safes with biometric locks come to mind). Some people for various reasons go way beyond what is required of them.
R0B said:
Really? Have any real world experience to back up that absurd claim of yours? I have arrested plenty of people under the citizens arrest provision, and nevery once did I have a handgun.
Hatchet Man said:
If "reasonable" has been defined, then why not go ahead and define it here? The Criminal Code has been widely criticized for its uncertainty, namely in using words like "reasonable," "obscene," indecent" etc... and not sticking by any one particular definition. Your "force wheel" might apply to the police, but I'm not a peace officer. If I were to shoot someone with a handgun even if they were in my home, threatening grievous bodily harm or death with a firearm, I would almost certainly be charged. In fact, I'd be willing to bet that I would in fact be charged. I might be able to get off on a plea of necessity, but that's about it.
Hatchet Man said:
I'm not talking about the police, so don't prejudice this argument with your police studies education, I'm talking about civilians. If someone is breaking into my house, their physical and mental characteristics should not matter. What should matter, on the other hand, is that fact that someone is forcibly intruding into my residence, and thus my life, the lives of the other occupants, and the sanctity of my private property are all in jeopardy. I haven't been training in using a minimal amount of force to subjugate a perpetrator, so it should only be reasonable that I, or anyone else in my position, be allowed to use any amount of force felt to be necessary.
Hatchet Man said:
Fear for your life isn't enough, it needs to be "reasonable," and your reasonableness is not decided until the trial.
Firearms storage isn't mentioned in the criminal code. However, take a look at section 5.(1 c) of the Firearms Act. It reads as follows:
An individual may store a non-restricted firearm only if it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.
And of course, that's a non-restricted firearm; it only gets worse for restricted and prohibited weapons. The CFO of Ontario suggested the reasoning for this was that individuals could not reach their firearms in the heat of passion.
Hatchet Man said:
Why do you think people obey the police? People obey the police because they fear them. Try your citizen's arrest in Jane/Finch and see how that goes. Unless your victim is physically subdued, good luck with a citizen's arrest.
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Hatchet Man said:
Ditto.
More applicably, every security guard in our country uses the exact same powers every time they arrest anyone, and very few have guns. The ones with guns in fact usualy don't carry out arrests, they're only there to protect money.
" As the use of force wheel used by police angencies "
CAUTION: The use of force wheel is necessitated by various provincial Police Acts. These are notorious pieces of legislation which largely hobble the police in many of their responses. You, as a citizen in your home, do NOT have your hands tied by the police act. The Magna Carta (a mam's home is his castle) and 1500 years of common law back you up.
Most police will tell you about restrictions based on their realities - not yours. They operate under the odious Police Act - you don't.
As suggested above - read the case law.
Tom
CAUTION: The use of force wheel is necessitated by various provincial Police Acts. These are notorious pieces of legislation which largely hobble the police in many of their responses. You, as a citizen in your home, do NOT have your hands tied by the police act. The Magna Carta (a mam's home is his castle) and 1500 years of common law back you up.
Most police will tell you about restrictions based on their realities - not yours. They operate under the odious Police Act - you don't.
As suggested above - read the case law.
Tom
- Reaction score
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R0B said:
I will concede that reasonable is hard to define as it is a subjective term. However that is more likely than not a good thing, as rigid defintions when used in the context of what is/is not excessive force would provide people little recourse if they found themselves at the short end of the stick. Basically it boils down to common sense (which judging by you seems to be in short supply). Was it designed by the police, yes it was but that does not preclude ordinary civillians from using it determine what is "reasonable" force in any given situation. In fact most if not all private security firms use it for thier employees (who are civilians by the way, not peace officers). Until you actually shoot someone in self-defence, how do you know for sure the police will charge you? They may well in fact decide what you did was reasonable and justifiable and say good job. As oft been said in this thread better Tried by 12 then carried by 6.
Ever heard the saying the police are the public and the public are the police? Any discussion about the police and use of force is absolutely relevant to discussions as it relates to civilians. They are subject to the same laws as us when it comes to using force/excessive force, the only difference is they get to use force in few more situations than civillians. And as they use force in a multitude of situations on a daily basis anything they come up with to help decide what is reasonable force (like the use of force wheel) is absolutely useful to civillians as well. Knowledge is power. But it would seem you do not want seek knowledge that will save your butt in a situation like the ones posed. Whether you like it or not the physical and mental characteristics of a perpatrator factor into whether the force used to subdue them was justifiable. Quit your gripping and deal with it. If you really don't like it write your MP and petition them to change the law instead of bitchin how much you think the law should conform to your views.
I already said fear of you life isn't enough, read more thoroughly. And once again if the police decide your actions were reasonable given the circumstances you won't be proceeding to trail. They make the first decision.
I am aware of the firearms regs, and nowhere does it say the you can't get access to your weapons quickly. You just have to make sure no else can get to them quickly and easily. A gun safe with a biometric lock does exactly that. The guns and ammo are not readily accessible to others because they are in a safe (which is in location that only I know of that no one else would see), with a lock that can't be picked (easily) unless you have my thumb.
People obey because they have been taught from childhood to obey, they obey because most people know bad things will happen if they don't. They obey because they understand they are only doing there job. It is not necessarily because they fear them. As for the second part, I have, as well as in Regent Park, Parkdale, Moss Park, Cabbagetown, Scarborough. Not everyone in these areas is a gun toting banger, and even they comply on occasion without the threat of force. Anymore smartas s comments?
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But the police also have large and power Associations to back up their members. I put up the use of force wheel, as it illustrates what is appropriate force in different situations, as the police are still subjects to the same laws as civillians regarding excessive force. It is a reference guide only not a hard and fast way of doing things. If more civillians followed this model (not just private security) they would be less likely to find themselves being charged with assault etc. while they were rightfully defending themselves/home/others.TCBF said:
"If more civillians followed this model (not just private security) they would be less likely to find themselves being charged with assault etc. while they were rightfully defending themselves/home/others."
More likely to find themselves dead. Police acts assume well trained and equiped police with lethal force at their hip and back-up. Individuals cannot carry, and so the initial physical contact must be enough by itself to stop the offence and prevent it's continuation. Escallation of force for police assumes access to deadly force - a gun - if needed, so they can afford to take risks - you can't.
Tom
More likely to find themselves dead. Police acts assume well trained and equiped police with lethal force at their hip and back-up. Individuals cannot carry, and so the initial physical contact must be enough by itself to stop the offence and prevent it's continuation. Escallation of force for police assumes access to deadly force - a gun - if needed, so they can afford to take risks - you can't.
Tom
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TCBF said:
? This is not part of the police services act (in Ontario). Civillians use this wheel (the National use of Force wheel is located here http://policechiefmagazine.org/magazine/issues/102004/PDFS/page132_fig3.pdf it does not say firearm, merely lethal force)all the time, they are called security guards. It does not assume anything, it is merely a guideline on how best to respond with force. A gun is not the only means of inlicting deadly force, baseball bats, knives, fists and feet can all be used to inflict lethal force. How would a civy find themselves dead? Someone bust into your house, they have knife, they are now presenting you with the option to use deadly force. So you grap a bat/chair/axe/etc (if you don't have a gun) and you beat their brains in. These are the guidelines the police know and use, and they are what the police will use to judge your actions. If you don't like that lobby your MPs.
"? This is not part of the police services act (in Ontario). ¦nbsp; Civillians use this wheel (the National use of Force wheel is located here http://policechiefmagazine.org/magazine/issues/102004/PDFS/page132_fig3.pdf it does not say firearm, merely lethal force)all the time, they.."
It clearly states " The National Use of Force Framework For Police Officers in Canada" Ya gotta read your own refs now and then. Unless you are suggesting the police designed that wheel for us to follow. Nice of them. Call 9-1-1 and die...
NEXT!
MY use of force wheel sees an old lady - all 88 pounds of her - shooting a puke in her house with her dead huusbands unregistered Luger. I see no need for her to consult a wheel and wrestle with her 237 pound meth-head attacker.
Go ahead, lock her up...
NEXT!
Tom
It clearly states " The National Use of Force Framework For Police Officers in Canada" Ya gotta read your own refs now and then. Unless you are suggesting the police designed that wheel for us to follow. Nice of them. Call 9-1-1 and die...
NEXT!
MY use of force wheel sees an old lady - all 88 pounds of her - shooting a puke in her house with her dead huusbands unregistered Luger. I see no need for her to consult a wheel and wrestle with her 237 pound meth-head attacker.
Go ahead, lock her up...
NEXT!
Tom
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No they designed these so they don't get charged with excessive force, and open themselves up to civil litigation. There is nothing that prevents civys from using these models for the same reasons, as the Criminal Code provisions for using excessive force are the SAME!! Regardless of whether you wear a badge or not. As I have said civillians (private security) already use these to keep their asses out of a sling. It is also useful because officers will judge whether YOU used excessive force based on THIER training and knowledge (which includes these wheels). I am not saying it is right, but that is what will happen, so better that you as a civy know how you are going to be judged.TCBF said:
And so does mine, and so do the ones I provided. How about you go back and read ALL of my posts. You will see that the situation you described above is exactly what I had in mind in justifing deadly force!! The reason for posting these wheels, is to give an illustration of what is "reasonable" force under the criminal code. NEXT!!!
Good heavens, that was loud...
;D
OK,
"No they designed these so they don't get charged with excessive force, and open themselves up to civil litigation. There is nothing that prevents civys from using these models for the same reasons, as the Criminal Code provisions for using excessive force are the SAME!! Regardless of whether you wear a badge or not. As I have said civillians (private security) already use these to keep their asses out of a sling. It is also useful because officers will judge whether YOU used excessive force based on THIER training and knowledge (which includes these wheels). I am not saying it is right, but that is what will happen, so better that you as a civy know how you are going to be judged."
But the judge looks differently at police charged under the criminal code exercising their authority than a homeowner in his house fighting for his life.
The more training - the more liability.
The catch is, the police are ALSO liable under the Police Act, we are not. Private security firms follow those at WORK, where they can often disengage. Lethal force by a citizen - to be called self defence - often results from a situation where the person must use lethal force because they truly fear for their life or the lives of their family.
By all means, other people may paint themselves into a corner if they wish, but they should not force their personal artificial restraints on others.
" The reason for posting these wheels, is to give an illustration of what is "reasonable" force under the criminal code. "
....regarding police and SGs at WORK, not Larry Lunchbox and Suzy Sewingkit at HOME.
"How about you go back and read ALL of my posts."
- I am guilty as charged.
;D
Tom
;D
OK,
"No they designed these so they don't get charged with excessive force, and open themselves up to civil litigation. There is nothing that prevents civys from using these models for the same reasons, as the Criminal Code provisions for using excessive force are the SAME!! Regardless of whether you wear a badge or not. As I have said civillians (private security) already use these to keep their asses out of a sling. It is also useful because officers will judge whether YOU used excessive force based on THIER training and knowledge (which includes these wheels). I am not saying it is right, but that is what will happen, so better that you as a civy know how you are going to be judged."
But the judge looks differently at police charged under the criminal code exercising their authority than a homeowner in his house fighting for his life.
The more training - the more liability.
The catch is, the police are ALSO liable under the Police Act, we are not. Private security firms follow those at WORK, where they can often disengage. Lethal force by a citizen - to be called self defence - often results from a situation where the person must use lethal force because they truly fear for their life or the lives of their family.
By all means, other people may paint themselves into a corner if they wish, but they should not force their personal artificial restraints on others.
" The reason for posting these wheels, is to give an illustration of what is "reasonable" force under the criminal code. "
....regarding police and SGs at WORK, not Larry Lunchbox and Suzy Sewingkit at HOME.
"How about you go back and read ALL of my posts."
- I am guilty as charged.
;D
Tom
- Reaction score
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TCBF said:
Sec 26. Criminal Code
and Section 27
These Sections make no distinction between Officer Bob at work, or Grandma Betty at home. Sec 25 below also says
There are ADDITIONAL provisions that apply strictly to law enforcement, but it is these provisions above that apply to EVERYONE. The reason I put up/mention the use of force wheels is because they help to illustrate (even to lay civillians) what is appropriate force, given that the term "reasonable force" is not clearly defined in the criminal code (its definintion is found in case law), and if civies use it as a "reference guide" (which is how the police use it, it is not intended to be used in strict application), then the chances of being charge by the police lessens. As I have said the police are the FIRST ones who get a crack at deciding your fate and whether your force was justified. And they will determine justification based on THEIR knowledge and THIER training. The closer civies stick to what cops know, the better off they will be. It is only after the police in consultation with the crown charging you, that a judge with/without a jury get to decide your fate. I don't know if I can explain/clarify this any better, first the police decide whether your force was justified (based on THIER knowledge/training/experience), and only IF they decide your force is NOT justified do the courts get their turn.
Knowing how the police think, and how they are trained will help you jusitify your actions to them, because you will know what kind of questions to expect, and how best to answer them.
Hatchet Man said:
The police might exercise discretion if they pull someone over for speeding, but shoot someone and you will be charged.
The force wheel might be good for a police officer, who carries a gun, whose job it is to uphold the law and be civil about it. You can't expect someone waken in the middle of the night by the sound of a window breaking to draw from non-existent law enforcement training and work experience to be perfectly reasonable in dealing with an intruder, particularly when too little force might lead to dire consequences.
Hatchet Man said:
The police may theoretically be subject to the same laws, but in practice, they are not.
I don't think the mental and physical characteristics should matter, because the occupant should be allowed to attack with lethal force before making such considerations. I'm not a peace officer, I'm not looking to subdue any perpetrators. If someone broke into my house, I would only be interested in guaranteeing the safety of myself, my family and my property, at any cost, which would involve, in a perfect world, instant lethal force.
Writing my MP would be useless; she's among the most ignorant in parliament.
Hatchet Man said:
This isn't a speeding ticket, police discretion doesn't apply here. Such a case would be left to the Crown's discretion, and they would almost certainly prosecute due to the policy implications of letting someone go for shooting another human being.
Hatchet Man said:
The fact that you would need to disengage a minimum of two locks and then load your gun pretty much means you don't have easy access. If you're sleeping, you don't have time to go and walk to your gun closet, unlock your gun (I've never heard of a biometric trigger lock,) unlock your bullets, take them out of their box, load your gun, chamber a round, and then go to confront the intruder. Easy access means having a loaded gun (not necessarily with a round chambered, but preferably) within arms reach.
Hatchet Man said:
People obey the law because they fear it. I don't know under what circumstances you've made your citizens arrests, I take it you did so as some sort of rent-a-cop, but whom did you arrest? Some kids for spitting on door handles or loitering? By your "not everyone in these areas in a gun toting banger" comment, I take you you've never placed some threatening criminal under your arrest. Well, to tie this into the original problem, the people you've been arresting aren't the kinds of people someone would really have to fear breaking into their homes. Do you think someone can just say "I place you under citizens arrest" to someone who breaks into their house? What if the person fights back? If you have a gun, you don't want to get close enough to restrain them, and if you let them run away, who knows what they're going to do. Maybe they'll tell their gun-hungry friends who will come back a few nights later to kill you for your gun. And another poster mentioned a little old lady with a luger - what the hell is she supposed to do?
"Knowing how the police think, and how they are trained will help you jusitify your actions to them, because you will know what kind of questions to expect, and how best to answer them."
- Very nice, but you don't answer questions, youy lawyer does - that's what you pay him for. You can always talk yourself into trouble, never out of it.
Oh, and read this, since we are in an RSC mood:
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.
Defence of Property
Defence of personal property
38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified
(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,
if he does not strike or cause bodily harm to the trespasser.
Assault by trespasser
(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
R.S., c. C-34, s. 38
- And the letter below sums up other sections nicely:
To: <undisclosed-recipients:>
Sent: Monday, March 21, 2005 11:39 PM
Subject: Copy of Letter from Justice Minister.
Self explanatory Ladies and Gentlemen
The Honourable / Lhonorable Irwin Cotler, PC., O.C., M.P./c.p., o.c.,
depute
Ottawa, Canada K1A 0H8
MAR 1 5 2005
A.W. Parsons
2307 - 85 Street
Edmonton, Alberta T6K 3H1
Dear A.W. Parsons:
The office of my colleague the Honourable Anne McLellan, Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness, has forwarded to me a copy of your correspondence, addressed to the Honourable David Kilgour, enquiring whether a citizen is legally able to protect himself in a home invasion type situation. I regret the delay in responding. The criminal laws of Canada permit the use of force in defence of a person's home. Section 40 of the Criminal Code provides that a person in lawful possession of a dwelling house is justified in using reasonable force to prevent someone from forcibly breaking in to the dwelling house. Section 41, further, provides that such a person is justified in using reasonable force to prevent someone from trespassing on that property, or to remove someone who is already trespassing.
In addition to wanting to defend the integrity of the house itself, the person inside the house is likely to also fear for their safety and the physical integrity of others inside the house in a home invasion situation.
In this regard, you may also be interested to know that section 34 of the Criminal Code provides the basic defence of self-defence. Selfdefence allows for the use of reasonable force to defend against an assault,
which includes both actual force on a person against their will as well as an attempt or threat to apply force.
Both self-defence and defence of property clearly allow a person to respond to force, actual or threatened, with force of their own. Where these defences apply, they excuse behaviour that would otherwise be criminal, such as assault or even homicide. It is, however, necessary that the force used in response to the threat be reasonable. Factors such as whether or not the invader had a weapon, the threat posed by the invader, the vulnerability of the defender, and the defender's options for defending himself and his house would certainly be relevant considerations in determining whether the response of the homeowner was reasonable. The final determination of what is reasonable, however, will of necessity vary according to the specific circumstance of a given incident. Each case would therefore have to be considered on its own.
I appreciate having had your concerns brought to my attention. Yours sincerely,
A~~- ~ CVtQVA.
Irwin Cotler
« Last Edit: March 30, 2005, 23:25:17 by TCBF »
- Very nice, but you don't answer questions, youy lawyer does - that's what you pay him for. You can always talk yourself into trouble, never out of it.
Oh, and read this, since we are in an RSC mood:
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.
Defence of Property
Defence of personal property
38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified
(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,
if he does not strike or cause bodily harm to the trespasser.
Assault by trespasser
(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
R.S., c. C-34, s. 38
- And the letter below sums up other sections nicely:
To: <undisclosed-recipients:>
Sent: Monday, March 21, 2005 11:39 PM
Subject: Copy of Letter from Justice Minister.
Self explanatory Ladies and Gentlemen
The Honourable / Lhonorable Irwin Cotler, PC., O.C., M.P./c.p., o.c.,
depute
Ottawa, Canada K1A 0H8
MAR 1 5 2005
A.W. Parsons
2307 - 85 Street
Edmonton, Alberta T6K 3H1
Dear A.W. Parsons:
The office of my colleague the Honourable Anne McLellan, Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness, has forwarded to me a copy of your correspondence, addressed to the Honourable David Kilgour, enquiring whether a citizen is legally able to protect himself in a home invasion type situation. I regret the delay in responding. The criminal laws of Canada permit the use of force in defence of a person's home. Section 40 of the Criminal Code provides that a person in lawful possession of a dwelling house is justified in using reasonable force to prevent someone from forcibly breaking in to the dwelling house. Section 41, further, provides that such a person is justified in using reasonable force to prevent someone from trespassing on that property, or to remove someone who is already trespassing.
In addition to wanting to defend the integrity of the house itself, the person inside the house is likely to also fear for their safety and the physical integrity of others inside the house in a home invasion situation.
In this regard, you may also be interested to know that section 34 of the Criminal Code provides the basic defence of self-defence. Selfdefence allows for the use of reasonable force to defend against an assault,
which includes both actual force on a person against their will as well as an attempt or threat to apply force.
Both self-defence and defence of property clearly allow a person to respond to force, actual or threatened, with force of their own. Where these defences apply, they excuse behaviour that would otherwise be criminal, such as assault or even homicide. It is, however, necessary that the force used in response to the threat be reasonable. Factors such as whether or not the invader had a weapon, the threat posed by the invader, the vulnerability of the defender, and the defender's options for defending himself and his house would certainly be relevant considerations in determining whether the response of the homeowner was reasonable. The final determination of what is reasonable, however, will of necessity vary according to the specific circumstance of a given incident. Each case would therefore have to be considered on its own.
I appreciate having had your concerns brought to my attention. Yours sincerely,
A~~- ~ CVtQVA.
Irwin Cotler
« Last Edit: March 30, 2005, 23:25:17 by TCBF »
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I am already aware of those sections as I already posted them a few pages ago. What was happening was ROB was acting all pissy about what was considered "reasonable force". Thats why I posted all that stuff about the force wheel as it illustrates reasonableness a little more clearly than words. If you go back a few pages, you will see those other sections of law have already been discussed. Which brought about the current discussion of what is considered reasonable force.
I understand that. We seem to be going around in circles. I will assume responsibility for the confusion caused by me not stating my point clearly in the beginning.
So,
My point: 'reasonable' is not solely based on the situation and the force used, but also on the dynamics of who and what the user and the recipient of the force are. If you shoot a bad guy in your house, then hand the gun to your wife or teenage daughter, the definition of 'reasonable' will change from that if you had held on to the gun. Unles of course you are confined to a wheel chair, and your wife/daughter is on the local police ERT etc..
Point is, a response wheel only suits a narrow slice of the pie - not all of us potential victims are equal, and that might be why the RSC is written the way it is, and why hundreds of years of common law are still important.
Tom
So,
My point: 'reasonable' is not solely based on the situation and the force used, but also on the dynamics of who and what the user and the recipient of the force are. If you shoot a bad guy in your house, then hand the gun to your wife or teenage daughter, the definition of 'reasonable' will change from that if you had held on to the gun. Unles of course you are confined to a wheel chair, and your wife/daughter is on the local police ERT etc..
Point is, a response wheel only suits a narrow slice of the pie - not all of us potential victims are equal, and that might be why the RSC is written the way it is, and why hundreds of years of common law are still important.
Tom
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