Self Defence in Canada (split from Gun Control 2.0)

[IKnowNothing]

Self defence doesn’t mean shooting people. It means using reasonable force to stop being attacked as per Canadian law. It isn’t a intent to harm or shoot anyone, it is the intent to stop being harmed. One of the case law cited in that 2004 case mentioned specifically that someone defending themselves from attack isn’t dangerous to the public peace, they are protecting the public peace (not going back through it again). Basically the law is as clear as mud on all it, likely intentionally so.

Except absent a clear and imminent threat of actual harm to be stopped, there's no self defence to be argued- it's just a plan to potentially shoot someone. The quoted passages were quite clear.

 

[Eaglelord17]

Except absent a clear and imminent threat of actual harm to be stopped, there's no self defence to be argued- it's just a plan to potentially shoot someone. The quoted passages were quite clear.

‘39 The question arises as to the relevance of a finding that the accused actually used his weapon in a manner which constituted justifiable self-defence. Thus, in R. v. Sulland (1982), 2 C.C.C. (3d) 68, the British Columbia Court of Appeal held, at p. 71:



In my view, one does not commit the offence with which we are concerned if one carries a weapon for self-defence that is an appropriate instrument with which to repel, in a lawful manner, the type of attack reasonably apprehended and if the person carrying it is competent to handle the weapon and is likely to use it responsibly. In the absence of other circumstances, such as conduct calculated to provoke an attack, the purpose is unlikely to be dangerous to the public peace. That an attacker might be repelled forcefully, and even injured, is not a danger that the section refers to. In that case the attack, not the response to it, breaches the public peace. [Emphasis added.]



Insofar as the B.C. Court of Appeal was referring, by the use of the phrase “in a lawful manner”, to justifiable self-defence, Jessup J.A., dissenting in Nelson, supra, seemed to agree (at p. 36):

Having a weapon for the sole purpose of abating a breach of the peace threatened to result from an attack on the possessor is not, in my opinion, a purpose dangerous to the public peace. Self-defence, justifiable under the Code, is not confined to tooth and nail.[Emphasis added.]’

Those seem to favour self defence not violating s 88.

 

[IKnowNothing]

‘39 The question arises as to the relevance of a finding that the accused actually used his weapon in a manner which constituted justifiable self-defence. Thus, in R. v. Sulland (1982), 2 C.C.C. (3d) 68, the British Columbia Court of Appeal held, at p. 71:

...

Those seem to favour self defence not violating s 88.

They do - in fact I actually mentioned Sulland up thread : " R v Macdonald 2014 and R v Kerr 2004 and how they narrowed the Sulland precedent"

Sulland did set the precedent you mention - in 1982 at the BC Court of Appeals. But... Kerr, in 2004 at the Supreme Court, took the precedent from Sulland and both clarified it and narrowed it- establishing a specific legal test, defining the parameters for the offense, and defining how self defense applies (only with imminent and unavoidable threat)

A more recent decision from a higher court supercedes earlier decisions and is binding on lower courts- that is to say, Kerr trumps Nelson and establishes a new precedent that must be followed across the country.

We see that standard applied and further narrowed in the R v Macdonald decision - where it was found that having been in recent conflict with a neighbour and then having a middle of the night pounding on your door is deemed not enough to reasonably perceive an imminent threat and arm yourself- in your own home.

Edited under the wire to add - this all flows the from the doctrine of collective peace - that while self defence an allowable defence to certain crimes, it should be an action of last resort with the law steering people towards any alternative to violence. Preparation and pre-emptive defensive armament is taken to imply that the defendant is pre-deciding to enter into conflict rather than seeking alternatives to avoid the self-defence situation.


So with a sequence of decisions a law originally drafted to prevent dangerous vigilantism and frontier justice to "civilize" public spaces has evolved to heavily restrict and effectively criminalize preemptive defensive preparation involving weapons, even at home. Hence- a very meaningful area for parliament to intervene to push back against ideological judges legislating from the bench and restore the ability of citizens in their homes to defend themselves.

 

[IKnowNothing]

Further to, a much more recent example - R v. Bilodeau. Father and teen son pursuing suspected thieves, contact adult son to come help and bring gun "just in case". They claim the intent of possession to use the gun only if they needed to for self defence, but as per Kerr:

[27] Unfortunately, the instruction on this point was “decanted” to the point of inaccuracy. It restricted “dangerous purpose” to “the dangerous purpose of committing an assault”, but a dangerous purpose can be something other than an assault. Perhaps more significantly, the instruction that the Crown had to disprove an “innocent purpose of protection” was too narrow. That is because the trial judge did not leave for the jury a third option (which would have been favourable to the Crown) that possession of the rifle for a “protective purpose” may still have been objectively dangerous to the public. Possession of a weapon for protection can constitute unlawful possession for a dangerous purpose where the perceived attack is avoidable: Kerr at paras 38 (per Major and Bastarache JJ) and 94 (per Arbour and LeBel JJ). It should have been open to the jury to consider whether the confrontation at the intersection was avoidable – for example, by breaking off the chase and returning home.

Both the father and adult son were convicted under section 88, as it was found that self defence didn't apply to their purpose of possession since the threat/ conflict was avoidable.

 

[suffolkowner]

in the end its better to plan and face whatever ridiculous consequences of those plans are then have to face the consequences of not planning
anecdotally it seems like theres been a change in the perception of the onus in these situations with the last few home invasions. Even in the Peterborough one where the charges were dropped

 

[Halifax Tar]

It just doesn't compute in my knuckle dragging NCM brain that we have a system that will essentially punish the victim taking the initiative and fight to the aggressor.

 

[Brad Sallows]

It's a strange way to set down the laws. People can face reasonably foreseeable risks, but have to in effect respond only spontaneously with whatever is at hand.

 

[OldSolduer]

It just doesn't compute in my knuckle dragging NCM brain that we have a system that will essentially punish the victim taking the initiative and fight to the aggressor.

I hear you, but the namby pamby bunch took over.

 

[Eaglelord17]

I wonder if S88 would survive a section 7 Charter Challenge. My rights to life, liberty, and the security of the person don’t end because someone seeks to deprive me of them.

 

[IKnowNothing]

It's a strange way to set down the laws. People can face reasonably foreseeable risks, but have to in effect respond only spontaneously with whatever is at hand.

Judicial activists going too far to enforce their pacifist doctrine. My worry would be that if something like Bill 270 came into effect they would double down on those ancillary principles and try to generate split verdicts as much as possible.

 

[Colin Parkinson]

Further to, a much more recent example - R v. Bilodeau. Father and teen son pursuing suspected thieves, contact adult son to come help and bring gun "just in case". They claim the intent of possession to use the gun only if they needed to for self defence, but as per Kerr:

[27] Unfortunately, the instruction on this point was “decanted” to the point of inaccuracy. It restricted “dangerous purpose” to “the dangerous purpose of committing an assault”, but a dangerous purpose can be something other than an assault. Perhaps more significantly, the instruction that the Crown had to disprove an “innocent purpose of protection” was too narrow. That is because the trial judge did not leave for the jury a third option (which would have been favourable to the Crown) that possession of the rifle for a “protective purpose” may still have been objectively dangerous to the public. Possession of a weapon for protection can constitute unlawful possession for a dangerous purpose where the perceived attack is avoidable: Kerr at paras 38 (per Major and Bastarache JJ) and 94 (per Arbour and LeBel JJ). It should have been open to the jury to consider whether the confrontation at the intersection was avoidable – for example, by breaking off the chase and returning home.

Both the father and adult son were convicted under section 88, as it was found that self defence didn't apply to their purpose of possession since the threat/ conflict was avoidable.

Don't know the details, but I infer they were following/chasing someone, then that does make self defense more difficult to win on.

Now if they had called the police who then declined to come out for whatever reason, that factor might weigh on a jury.