A couple of weeks ago, we posted a blog explaining how the newly assented Bill C-26 changes what constitutes a citizen’s arrest. Today, we’re also going to focus on Bill C-26, but we’ll be looking at clause 2 of the bill which makes changes to the defence of self-defence.
When someone is officially charged with a crime they become known as “the Accused”. Sometimes, the Accused pleads “not guilty” to the charge because, although s/he committed the action question, s/he believes s/he has a legally valid reason for having done so. One such possible legally valid reason is “self-defence.” An example: a man walking in park thinks he is about to be mugged, the would-be victim fights and seriously wounds the would-be robber. Although the one did in fact hurt the other, thereby arguably committing “assault”, the victim could argue that he was just acting in self-defence and therefore should not be convicted of any crime.
Prior to Bill C-26, the Criminal Code definition of self-defence had been described by police, prosecutors and the courts as confusing and overly complex. Self-defence spanned four sections of the Criminal Code (sections 34 to 37). The criticism for this lack of consolidation made it to the Supreme Court where, in R v McIntosh, Chief Justice Lamer condemned sections 34 and 35 for overlapping and being inconsistent.
Prior to Bill C-26, whenever self-defence was argued, the court had to figure out which of the four sections the case fit under. For example, it could have been a case of an unprovoked attack that fit under section 34(1). Or perhaps the person arguing self-defence applied grievous bodily harm (either intentional or non-intentional), thus shifting it to section 34(2). Or maybe it was an incident of provoked assault that fell under section 35. It could have even been a section 37 case of self defence of another person (ie: not only defence of the self, but defence of another). The procedure of figuring out which section each individual case fit under was cumbersome and confusing. Parliament decided that the defence of self-defence needed a consolidated definition and passed Bill C-26.
Bill C-26 endeavours to simplify self-defence and make it easier to understand. It eliminates sections 34 to 37 of the Criminal Code and replaces them with a single “self-defence” section – the new section 34. Under the new section 34 the court no longer has to distinguish between provoked and unprovoked attacks, or look at whether the person claiming self-defence applied grievous bodily harm, because all references to those terms have been removed.
The new section 34 maintains that a person will not be guilty of an offence if they defend themselves in a situation where they reasonably believe that force or a threat of force is being used against them. The actions they use to defend themselves must also be reasonable. Self defence of another person is also included under the new section 34.
Today, if an accused argues self-defence the court will look at the entire circumstances of the incident to determine whether the actions used by the accused were reasonable. It may look at things like whether it was imminent that force was going to be used against the accused, whether the two parties involved had a history, or the size, age, gender and physical capacities of the parties. As is often the case, there is no definitive definition of what is reasonable, so this list (and the larger list outlined in the new section 34) is not exhaustive.
The result of Bill C-26 is a definition of self-defence that should be easier for everyone to understand. But like many law related issues, things are seldom cut and dry, and the reasonableness of each individual case is what will ultimately decide if it’s a case of self-defence.
Let us return to our example. Under the old law, a court would have had to first determine what section to apply. Was it provoked – so s.34(1) or 35? Was the bodily harm grievous enough to fit into 2.34(2)? Or not? What if it fits under more than one category? What is we choose the category? What if we get results in different categories? Under the new law, we don’t need to worry and argue about all of that, we would just need to look at what happened and whether the person’s actions were reasonable in the circumstances.
To learn more about how Bill C-26 attempts to make sense of self-defence, see the legislative summary of Bill C-26, and scroll down to clause 2.
Changes to citizen's arrest
On June 28, 2012 the federal government gave royal assent to a new law that expands the power for ordinary Canadians to make a citizen’s arrest, and that streamlines the provisions regarding defending oneself and one’s property.
So what exactly are these changes, and what do they mean for the average Canadian?
The new law, Bill C-26 (also known as the “Lucky Moose Bill” – more on that later) amends s.494 of the Criminal Code of Canada. Under the old law, ordinary citizens could only arrest someone if they found a person actually committing a criminal offence. This requirement for the offender to be caught red-handed is what had been the stumbling block in a widely-publicized 2009 case out of Toronto. In that case, David Chen, the owner of the Lucky Moose Food Mart (there’s the link!) spotted a man coming towards his store and recognized him as having previously stolen some plants. Chen and two employees chased the accused, caught up to him a short distance away, grabbed him, tied him up, and threw him into their delivery van so that they could hold him until the police came. Instead of being hailed as heroes, however, Mr. Chen and his employees found themselves arrested and charged with assault and forcible confinement (they were ultimately acquitted, although only after first refusing a plea bargain that sought to have them admit to lesser charges).
Under the new law, Mr. Chen would likely fare better. The new law allows citizen’s arrests not only while the offence is being committed, but within a “reasonable time” after the offence if the citizen making the arrest believes “on reasonable grounds” that it is “not feasible” for police to make the arrest. In short: there will now be more latitude in the manner and timing of making citizen’s arrests, as long as the actions in question are seen by the courts as being “reasonable” under the circumstances. However, law enforcement must still be contacted as soon as possible afterwards.
The new legislation also pulls together a number of Criminal Code provisions that dealt with the defence of personal property. More specifically, the new law allows those who are in “peaceful possession” of property to take reasonable steps to protect that property from persons entering the property when they are not allowed to do so, or from stealing or damaging that property. Again, the actions taken must have been reasonable in the circumstances.
The next question that arises is, naturally, what does “reasonable” in the circumstance mean? Although there is no definite answer to that question, the new law does set out a list of factors which the court may take into account in determining what is reasonable. These factors include: the nature of the force or threat; whether weapons were involved, whether the threat was imminent; the role of all parties involved in the incident; the prior relationship of all the parties if any; the age, size and gender of the parties; and the proportionality of the response.
The result: this is not a carte blanche for vigilantism, but, hopefully, it will help make us all safer and result in fewer victims finding themselves facing criminal charges.
Remember, though: keep it reasonable!
For information regarding the reasoning behind the new law, see the legislative summary.