Self Defence and Protecting Canadians

[Quiet Riot]

sec.38 of Criminal code of Canada
38.(1)Everyone who is in peaceable possesion of personal property, and everyone lawfully assisting him is justified:
       (a) in preventing a tresspaser from taking it, or
       (b) in taking it from a tresspaser who has taken it, if he does not strike or cause bodily harm to the trespasser.
   (2)where a person who is peaceable possesion of personal property lays hands on it(stolen property) , a trespasser who persits in attempting to keep it or take it from him or from anyone lawfully assisting him shall be deemed to commit assault without justification or provocation.

section38 sets out the limits on the use of force; it cannot include striking or causing bodliy harm to the trespasser.   the justification applies to the person in peaceable possesion of personal property and extend to everyone assisting him. The permitted actions are preventing the trespasser from taking the property or in taking property back from a trespasser.   The force used must not be excessive, but the section has been inturpted to permit pointing of a gun by a physically weak person to prevent the taking of the property.

sec.34 self defence against unprovoked assault
34.(1)everyone 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) everyone 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(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence which the assault was originally made or with which the assailant pursues his purposes; and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.

sec.494 give normal citizens the right to arrest without a warrant but they don't have the right to use violence unless he is assisting a peace officier in apprending the suspect(sec.25(4)) or unless he believes on reasonable grounds that is necessary for self-preservation of the person(acting party) or the preservation of anyone under that person's protection from death or grievous bodily harm(sec 25(3)).

so in short protecting store and chasing him outta there= good
chasing down street with bat=bad(could be charged with assault or worse)
And like the RCMP officier said even the intial use of the stick and bat could be enough to lay charges if bodily harm was caused.
Of course i am just a student and this is just my interpetaion of it. If any lawyers or Police officers are present please feel free to correct me.

 

[I_am_John_Galt]

Um, so it's legal to point a "gun" if one is a "physically weak person" but it is illegal to use it?  WTF?

 

[rw4th]

So if get this straight, according to the law

Guy breaks into my house and takes my DVD player
I confront him (no weapons) and say: â Å“hey put that downâ ?
He says no and tries to run

So according to Sec. 38 1(a) and 1(b) I cannot physically try and stop him (this would require a struggle and causing of bodily harm).

But, if I then catch up to him and grab my DVD player form him, according to Sec. 38-2 if he tries to grab it back from me, he is then â Å“deemed to commit assault without justification or provocationâ ?

Or do both 38-1 and 38-2 overlap?

 

[J.J]

I am one of those Law Enforcement types. As Quiet Riot posted we know what we are legally entitled to do. From my training and perspective this is what I know.  The use of force must be the minimum amount necessary. The theory is spelled out in the "Use of Force Continuum", which is the RCMP standard for force is; the one plus one theory. Meaning you may use a level of force one step above the aggressor. If he is non-compliant I can use soft and hard hand strikes, pressure points, arm bars etc. If he raises his fists I can use my OC; if I encounter or feel a heighten sense of danger, he is bigger than me, there is more of them, I am alone, etc. I can then deploy my Baton and only administer strikes in specific areas, no head/throat strikes. Deadly force can only be used for an imminent threat to life or limb. You must be able to articulate what threat you felt and everything you did prior, during and after the confrontation. Nothing is clear cut, it is all on perception and training. That is what governs Peace Officer's in the Criminal Code. For joe citizen, they can use force to protect themselves, but only the minimum force necessary. Meaning if you use a gun when an intruder enters your house, that is considered excessive and you will collect several serious Indictable charges. If you are walking down the street and you are punched you can use force to defend yourself, but if you pick a tire iron up, this is considered excess force. To clarify a false belief, you do not have to physically strike someone to be charged with assault, if you make motion to or attempt to, you can be charged with assault.
To respond to the less than lethal options and why we are not allowed to possess them in Canada. First I do not support the registry, secondly I do support gun control and restrictions on the average person. I do not believe we should be allowed to possess  less than lethal options. I am from Windsor, on the border with Detroit Michigan and I see day to day during my job, talking to my Detroit colleagues and watching the news that gun crimes and other crimes involving  less than lethal options  is out of control. Using the argument of arming all the citizens does not seem to work in the US, as there are more guns and the use of less than lethal options than there are people. What happens is the criminal shoots first and then says "this is a stick up".
Canada is not a perfect and absoulutely safe society, but it is one of the closest on earth. Things do need to change, but taking that step towards the American mentality and their second Amendment would be disasterous.

 

[Quiet Riot]

you can try and physically stop him you just can't strike him or cause serious bodily harm.  You can try and physically restrain him with joint locks and the such, just as long as you don't snap anything.   They are both parts of sec38, they are just sub-sections sec.38(1) and 38(2).  As for your example with the guy breaking into your house;

sec.40 of the criminal code defence of dwelling
40.Everyone  who is in peaceable possesion of a dwelling-house and everyone assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.

sec.41 CCC defence of house or real property
41.(1) everyone who is in peaceable possesion of a dwelling-house or real property, and everyone lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling house or real property, or to remove a trespasser therefrom, if he uses no more force than is necesary.
   (2) a trespasser who resists an attempt by a person who is in peaceable possesion of a dwelling house or real property or a  person lawfully assiting him or acting under his authority to prevent entry or to remove him, shall be deemed to commit assault without provocation or justification.

About the gun part, i guess the thinking behind it is that unless you are weak you can try to physically restrain him.(the gun part was in the Criminal code and isnt my interpetaion)
Again i'd like to say i am just a student and this is just my interpetation of the events and of the Criminal code.

 

[TCBF]

"I'm wrong, but I remember being told (by a cop) that police have a shoot-to-kill policy with guys wielding knives once they get to within a certain distance."

So do you.   Self defence does not have to be a fair fight in your own home. The gun makes up for the fact that the little old lady cannot - and should not - have to arm wrestle a crack fiend.

BE CAREFUL ACCEPTING LEGAL ADVISE FROM POLICE.   They are liable under various police acts - very odious legislation.   As well, they have a bureaucratic and institutional bias towards others who use lethal force - it breaks their rice bowl.   You are of more use to the police as a victim then as a victor - remember that.

One other point: "We are the police and the police are us." The police protect society full time, but cannot do it without the aide of witnesses and alert and responsible citizens.   We protect society part time: by assisting police and being responsible for our individual security.

Anyone have a copy of Sir Robert Peel's "Nine points of Policing" handy?

Tom

 

[Quiet Riot]

SIR ROBERT PEEL'S NINE PRINCIPLES(source   http://www.newwestpolice.org/peel.html )

--------------------------------------------------------------------------------
1.The basic mission for which the police exist is to prevent crime and disorder.
2.The ability of the police to perform their duties is dependent upon public approval of police actions.
3.Police must secure the willing co-operation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.
4.The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.
5.Police seek and preserve public favour not by catering to public opinion but by constantly demonstrating absolute impartial service to the law.
6.Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient.
7.Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
8.Police should always direct their action strictly towards their functions and never appear to usurp the powers of the judiciary.
9.The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it

about the shoot to kill against a gun with knife, check this video out http://www.ebaumsworld.com/standoff.html
i think the reason for that is a person with a knife who intends to use is considered as deadly as someone with a gun when he's 15ft  or closer, but i could be wrong with the distance and reason.

 

[TCBF]

I am much obliged to you, Quiet Riot.

Tom

 

[Infanteer]

Sergeant Jacques, welcome to Army.ca - you should find a home here with the rest of the "Windsor Regt. Mafia" (Recceguy, Spanky, ARG)  

That being said:

I am one of those Law Enforcement types. As Quiet Riot posted we know what we are legally entitled to do. From my training and perspective this is what I know.   The use of force must be the minimum amount necessary. The theory is spelled out in the "Use of Force Continuum", which is the RCMP standard for force is; the one plus one theory. Meaning you may use a level of force one step above the aggressor. If he is non-compliant I can use soft and hard hand strikes, pressure points, arm bars etc. If he raises his fists I can use my OC; if I encounter or feel a heighten sense of danger, he is bigger than me, there is more of them, I am alone, etc. I can then deploy my Baton and only administer strikes in specific areas, no head/throat strikes. Deadly force can only be used for an imminent threat to life or limb. You must be able to articulate what threat you felt and everything you did prior, during and after the confrontation. Nothing is clear cut, it is all on perception and training. That is what governs Peace Officer's in the Criminal Code. For joe citizen, they can use force to protect themselves, but only the minimum force necessary. Meaning if you use a gun when an intruder enters your house, that is considered excessive and you will collect several serious Indictable charges. If you are walking down the street and you are punched you can use force to defend yourself, but if you pick a tire iron up, this is considered excess force. To clarify a false belief, you do not have to physically strike someone to be charged with assault, if you make motion to or attempt to, you can be charged with assault.

I disagree with this legal principle, plain and simple - I know you are an Police Officer, and you don't make the laws, so I'll say I disagree with whoever legistlated this - perhaps I'll have to go get my LL.B. or something.

I see no reason why the law cannot protect citizens under the "Use of Force Continuum" as you have presented it.  Why should a citizen be restricted from using a "one plus one" theory - it seems perfectly sensible.

Say Mr X decides he wants to beat me to a pulp - perhaps I don't want to get into a fist fight with him (and thus use minimal force), so I knock him out with the tire iron and either run away or hold him down until the cops come.  The police are certainly justified in doing this; if I were to start a fist fight with an officer, I can see no complaint against using the baton to restrain me.  But if a citizen does this he is a criminal?

That being said, the same logical restrictions are in place - if I smash the guys skull in with the tire iron, I'm just as liable as if a cop went "Rodney King" on some guy who got a little feisty at the bar.  Clearly, both a private citizen or a cop have violated the "one plus one" principle in these cases.

I would fully support a "Citizens Use of Force Contiuum".  It should be something that, like sex ed, is taught to people in school.  Knowing your legal rights when confronted with being a victim is something very important - it should be, along with other things (like how our democracy works), something that should be part of a senior level "Civics" class for highschool kids.

To respond to the less than lethal options and why we are not allowed to possess them in Canada. First I do not support the registry, secondly I do support gun control and restrictions on the average person. I do not believe we should be allowed to possess   less than lethal options. I am from Windsor, on the border with Detroit Michigan and I see day to day during my job, talking to my Detroit colleagues and watching the news that gun crimes and other crimes involving   less than lethal options   is out of control. Using the argument of arming all the citizens does not seem to work in the US, as there are more guns and the use of less than lethal options than there are people. What happens is the criminal shoots first and then says "this is a stick up".
Canada is not a perfect and absoulutely safe society, but it is one of the closest on earth. Things do need to change, but taking that step towards the American mentality and their second Amendment would be disasterous.

I'm not sure if gun restrictions are the reason Canada has avoided the "American mentality".  This has been discussed to endless length on the gun control thread, but how do "Rights of Lawful Gun Owning Civilians" and "Criminal Acts with Firearms" always tend to get mixed up?

 

[Infanteer]

Self defence does not have to be a fair fight in your own home. The gun makes up for the fact that the little old lady cannot - and should not - have to arm wrestle a crack fiend.

This is more a philosophical debate then a legal one (because we have the legal realities layed out for us right here), but I think this applies to anyone.   Why do I have to wrestle with a crack-fiend that has broken into my house?   I may be stronger, but you're right - what does "fighting fair" have to do with defending one's life and property.

If I come down and see Joe Blowfiend rooting around my stuff and I pull a firearm on him and he doesn't immediately cease and desist (ie: he rushes me) he is fair game as far as I am concerned.   Too many intangibles to play around with in a situation like this and the criminal has violated the victims well-being in a severe enough manner that he should have no recourse to legal technicalities.  Just my opinion, but one that seems to make sense to me.

I guess, with the current configuration of our laws, one has to apply "it is better to be judged by 12 then carried out by 6."   It is a shame that self-defence involves the judging though.

 

[J.J]

To put it bluntly and hopefully you do not take offence TCBF, but the notion that "it breaks the rice bowl" is a lot of B.S. It would be great if people would come forward and help Law Enforcement, but they do not. I have gone through rigorous training and a yearly prequalification to use force. I am subject to A LOT of oversight and armchair quarterbacks. I do understand the desire to hurt the scum that prey upon the weak. I have used force several times and I will admit, sometimes it is not easy to use the minimum amount necessary, but I like my job and my house and car and my freedom, so it is not worth it to use more force than necessary. I am not trying to say, only those with a badge have the god given right to use force. I am saying if you are in a situation where force is absolutely necessary, be smart about it and think if losing everything you have, including your freedom is worth it.
Yes, you are right Police Acts and other legislation like it does limit what advice can be given. Only lawful advice can be given, so yes take heed of the advice, it may not be what you want to hear, but it will be what is legal.
There is no Department/Agency anywhere in Canada that would have a policy of shoot to kill for a knife wielding subject. The policy is to use the minimum force necessary, if it can be done with a baton strike or if tasers are available that is what you use. If you have no other options and there is a risk for the loss of life or serious injury you can then use your last option, deadly force. You are supposed to work your way up the Continuum; Officer Presence, Tactical Communication (Verbal Intervention), Empty hand control (soft), Empty hand control (hard), Aerosols, Impact weapons and Lethal force. You can jump steps, up or down as the situation dictates. If the Officer has the mindset that they are going to use Lethal force with the first knife wielding subject they see, they will have a very short and dramatic front page career.

 

[Quiet Riot]

No worries TCBF.
How did youl like how the Toronto police handled that guy with a knife, pretty creative use of a squad car if you ask me.... (for those who didn't see the link here it is http://www.ebaumsworld.com/standoff.html )

 

[dutchie]

Well said JJacques, and welcome to Army.ca

 

[Infanteer]

I am saying if you are in a situation where force is absolutely necessary, be smart about it and think if losing everything you have, including your freedom is worth it.

Exactly, I agree 100%.  We don't teach Canadian citizens their rights and responsibilities when it comes to defending themselves, regardless of how the laws are configured.  I support better "ROE awareness training" for citizens either with the current system or if we were to give Canadians more leeway in defending themselves.

Considering that the StatsCan report on Violent Crime say that Canada's rate is roughly 1,000/100,000 people, I'd say that a 1% chance of being a victim of a violent crime justifies the importance that Canadians be aware and prepared both physically and mentally to defend themselves.  If they choose not to be then that's fine, they can join the multiple stabbing victims who have been targetted in violent robberies in a Burnaby, B.C. park over the last few weeks.

There is no Department/Agency anywhere in Canada that would have a policy of shoot to kill for a knife wielding subject. The policy is to use the minimum force necessary, if it can be done with a baton strike or if tasers are available that is what you use. If you have no other options and there is a risk for the loss of life or serious injury you can then use your last option, deadly force. You are supposed to work your way up the Continuum; Officer Presence, Tactical Communication (Verbal Intervention), Empty hand control (soft), Empty hand control (hard), Aerosols, Impact weapons and Lethal force. You can jump steps, up or down as the situation dictates. If the Officer has the mindset that they are going to use Lethal force with the first knife wielding subject they see, they will have a very short and dramatic front page career.

I was told this by an RCMP officer - that a man attacking with a knife can be shot once he closes to within a certain distance - with Less-Than-Lethal methods available to police officers, I could see a change in SOP's.

However, you've argued against allowing Canadians to have access to Less-Than-Lethal Options, so I am limited in my response to what I can do.  If I am attacked by a knife wielding man (as in the Burnaby case) I have no recourse by to put 2 in the center of mass (assuming I had access to a CCW permit) or to hope that I had some hitherto undiscovered Bruce Lee powers that enable me to turn away this attacker with my bare hands.  Other then that, it is hoping for the Police Officers to turn up and hoping that I am able to recover from multiple puncture wounds to my chest....

Perhaps we do need to give citizens pepper spray (if trained properly to use it)?

PS: Here is the newstory on the Burnaby Stabbings - another reason why I believe civilians should have (if the desire) access to the ability to Defend themselves and their property from violent crime.

http://www.burnabynewsleader.com/portals-code/list.cgi?paper=41&cat=23&id=400361&more=

 

[TCBF]

"You can jump steps, up or down as the situation dictates. If the Officer has the mindset that they are going to use Lethal force with the first knife wielding subject they see, they will have a very short and dramatic front page career. "

I agree.  My point was that a citizen in her home does not have to comply with the Police Act mandated continuum of force.  Merely "what is reasonable under the circumstances".

Willthe citizen be charged in a self defence shooting?  Unlike a police officer - yes.  But case law has been very kind to those who ensure their own right to life.  

I think your job as a police officer would be easier - not harder - if more citizens knew exactly what rights for self defence they DID have.  Listening to fools like Allan Rock say that use of a firearm in self defence was NOT allowed has left us with a demoralized and confused citizenry who have dumped all responsibilities for their own protection on the police.  An impossible job. Not very fair to the police, is it?

My "breaking their ricebowl" comment was a bit of an unfair smear.  I know there are police officers out there who hi-five each other every time a criminal meets his legal demise at the hands of a citizen (who acted within the law).

Welcome to army.ca!  (I too, am a rookie.)

Tom

 

[Inch]

There is no Department/Agency anywhere in Canada that would have a policy of shoot to kill for a knife wielding subject. The policy is to use the minimum force necessary, if it can be done with a baton strike or if tasers are available that is what you use. If you have no other options and there is a risk for the loss of life or serious injury you can then use your last option, deadly force.

If there's a JAG on these means I'm open to correction, but from my annual ROE briefing (which I did twice due to being posted), it was my understanding that a member of the CF can use up to and including deadly force if an immediate threat to life or serious injury is present. As well, if another member of the CF is in the same situation, we're authorized to use up to and including deadly force to defend that person (collective self-defence of the CF).

Of course I asked for clarification, it basically came down to if someone comes at me or another CF member with a weapon, we can shoot them. Even if they're unarmed but due to their size or state of mind if I feel they're a threat to life and limb, they can be shot.

That's the Standing ROE on Self Defence, both for 1 CAD and MARLANT and I would assume the rest of the CF as well.

 

[Freddy Chef]

Assault is the use of violence or the reasonable threat of violence:

Eg) - Buddy punching you in the face (touching you without your permission)
      - Buddy coming at you to punch you in the face (approaching you without your permission)
      - (Even if Buddy threatens to punch you in the face, and you honestly believe he will do it)

Use of force for self defence is enough force to stop an assault. [My strategy is for a mobility kill, a side-kick to the knee cap. If buddy is coming at me, I tell him to stop, and he keeps coming at me, I'm kicking out his knee cap and backing off. If buddy still limps after me, I'm kicking out the other knee cap. My explanation to the cop/judge; â Å“I told the guy to stop, he didn't stop, I honestly felt he was going to hurt me, I honestly felt he would chase after me for the purpose of hurting me, so I immobilized him.â ?] Throw enough shots to stop the guy, or until he is no longer a threat.

Those who know the details of the CCC, feel free to sort out my above interpretation.

 

[rw4th]

Concerning the knife thing and the 15ft rule. What is means is that from 15 ft a person can close the distance and stab you before you can draw your gun and shoot. I think it has also been legally established that a person with a knife within 15ft of you can constitute a deadly threat (don't quote me here)

To respond to the less than lethal options and why we are not allowed to possess them in Canada. First I do not support the registry, secondly I do support gun control and restrictions on the average person. I do not believe we should be allowed to possess   less than lethal options. I am from Windsor, on the border with Detroit Michigan and I see day to day during my job, talking to my Detroit colleagues and watching the news that gun crimes and other crimes involving   less than lethal options   is out of control. Using the argument of arming all the citizens does not seem to work in the US, as there are more guns and the use of less than lethal options than there are people.

JJaques, if my PAL makes me thrust worthy enough to own a handgun, why would I not be trustworthy enough to own a taser? I'm not saying we should sell OC and tasers at Walmart, just make them available and subject to restriction (i.e. you need a PAL to buy them) as firearms.

My biggest problem as a civilian is that I have very little options in my own use of force continuum. I can have to go from verbally defusing, to strikes, to lethal force (tire iron/gun). If a guy breaks into my house and I have to confront him, I'd rather do it with a taser then directly with my handgun.  

you can try and physically stop him you just can't strike him or cause serious bodily harm.   You can try and physically restrain him with joint locks and the such, just as long as you don't snap anything.    They are both parts of sec38, they are just sub-sections sec.38(1) and 38(2).   As for your example with the guy breaking into your house;

Ok, I have a major objection here. I don't want to get in self-defense/martial arts argument, but joint-locks and pressure points are crap against someone who's resisting and determined to fight back. To stop a determined person I WILL have to resort to strikes, sooner rather then later.

There is no Department/Agency anywhere in Canada that would have a policy of shoot to kill for a knife wielding subject. The policy is to use the minimum force necessary, if it can be done with a baton strike or if tasers are available that is what you use. If you have no other options and there is a risk for the loss of life or serious injury you can then use your last option, deadly force.

There is not such thing as â Å“shoot to kill/shoot to woundâ ?. If you're shooting it's because you are justified in killing. If you find yourself thinking that you could just wound him, you are not using the right tool.

 

[TCBF]

"Ok, I have a major objection here. I don't want to get in self-defense/martial arts argument, but joint-locks and pressure points are crap against someone who's resisting and determined to fight back. To stop a determined person I WILL have to resort to strikes, sooner rather then later."

All well and good, but eventually all self defence discusions boil down to the fact that there is no legal requirement for a liittle old lady to turn her bedroom into the WWF and go hand to hand with the monkey who wants to snap her in two to get at her PIN.  The coroner would say, "Too bad she didn't shoot him." And so will most cops - to each other.

Tom

 

[Quiet Riot]

Well about the joint lock comment, unless you really know what you're doing they are absolutely useless.  But if you know what you're doing and the person isn't hyped on something they are very effective.  But I meant it as you can do something just not start throwing punches or kicks right off the bat.  And also has jjacques said as soon as the offender ups his force level you can do the same.
The 15ft rule sounds similiar to what I was told in class, just wasn't sure.
Freddy you put it very well but i'll post the legal jargon anyway.

Sec.265 Assault
265(1)a person commits assault when
        (a) without consent of another person, he applies force intentionally to that other person, directly or indirectly;
        (b) he attempts or threatens, by any act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
        (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs