Week 12: Criminal Defences: Self-Defence and Defence of Property
Criminal Defences: Self-Defence and Defence of Property
Overview of Criminal Defences
Criminal law recognizes specific defenses that individuals can invoke to justify their actions under circumstances defined by the law. This section delves into the nuances of Self-Defence and the Defence of Property as delineated in the Criminal Code of Canada.
Self-Defence (Criminal Code s. 34)
General Principle: Section 34 of the Criminal Code delineates the legal framework that permits individuals to take necessary actions to protect themselves or others from immediate threats of harm. This provision emphasizes the importance of self-preservation in potentially life-threatening situations.
Criteria for Justified Self-Defence:
(1) The individual must hold a reasonable belief that force is being used or threatened against them or another individual. This belief must stem from objective evidence rather than a mere subjective feeling.
(2) The act constituting the offense should be performed with a genuine purpose of defending oneself or protecting another individual from harm.
(3) The response must be reasonable under the circumstances, meaning that the level of force employed should be proportional to the threat faced.
Reasonableness in Self-Defence
Courts evaluate the reasonableness of force utilized in self-defence by considering several factors:
The nature and severity of the threat encountered.
Immediacy of the threat and the feasibility of alternative responses that could avoid confrontation.
The individual's involvement and role in the incident leading to the defensive act.
Use of weapons by any and all parties involved in the scenario.
Relevant characteristics such as size, age, gender, and physical capabilities of the individuals involved, which could influence the perception of the threat.
Any prior relationships or history of threats between the parties, affecting the context of the perceived threat.
Proportionality of the defensive action in relation to the threat faced, ensuring that no unnecessary force is applied.
The legality of the actions of the threatening party must also be evaluated, as lawful actions cannot give rise to a justified defensible response.
Limitations of Self-Defence (Criminal Code s. 34(3))
The application of self-defence is limited by specific considerations:
Subsection (1) does not apply in situations where the force used is in direct response to actions that are lawful by nature. However, this may change if the defender genuinely believes the actions to be unlawful based on reasonable grounds.
Defence of Property (Criminal Code s. 35)
General Principle: Section 35 provides a framework for individuals to legally defend their property from unauthorized intrusion or harm.
Criteria for Justified Defence of Property:
(1) The defender must hold a reasonable belief that they are in peaceable possession of the property in question or are assisting another person who possesses it.
(2) The defender must have a reasonable belief that another individual is unlawfully attempting to enter, take, damage, or destroy the property, constituting a direct threat to their rights.
(3) The subsequent actions undertaken must specifically aim to prevent unlawful entry, removal, or damage to the property in question.
(4) The methods employed to defend the property must be considered reasonable given the surrounding circumstances.
Limitations of Defence of Property (Criminal Code s. 35(2))
Section 35(2) expands on the limitations of property defence:
Subsection (1) will not apply if the defender does not have a legitimate claim to possession of the property involved.
The defender may not invoke self-defence against an individual who is lawfully enforcing the law, unless there are reasonable grounds to believe that the enforcement action itself is unlawful.
Summary of Requirements for Defence of Property
Claims for self-defence of property must convincingly address four essential elements:
A reasonable belief that they are in peaceable possession of the property.
A belief in a current or imminent unlawful act, such as trespass, theft, or damage.
Actions taken must have the objective of preventing the unlawful act from occurring.
The actions must be reasonable when judged against the circumstances as they unfolded.
Case Example: Firing a Warning Shot
In a notable case, the act of firing a warning shot was deemed justifiable based on the immediate danger presented:
The circumstances encapsulated a significant threat posed by a hostile group of individuals, prompting a need for immediate defensive action.
The necessity to protect oneself and bystanders was crucial, with the court asserting: "…it is the force itself, and not the consequence of the force used, which is justified." (Kandola, 1993)
Conclusion
A comprehensive understanding of self-defence and defence of property is vital for assessing the legality of actions taken in dangerous encounters. The Criminal Code establishes a legal framework that balances the rights of individuals to protect themselves and their property with the need for public safety and the rule of law.