Friday, June 6, 2008

Self-Defense and What is Allowed By Law

The other day I got to talking with my students about the what-ifs when it comes to what you are legally allowed to do when you are in a situation in which you have to defend yourself against an unprovoked attack. There are so many ifs, ands, and buts that I can't really say what is allowed in every single situation because each situation has its own unique factors. I can, however, provide some guidelines based on Section 34 of the Canadian Criminal Code.

Section 34 is intended to present the circumstances under which you are legally justified to defend yourself from a physical assault. The laws are intended to provide the victim legal grounds with which to defend him or herself. They also prevent a person who perceives themselves as a victim from using excessive force against an attacker which could have been subdued more humanely.

The following is not legal advice and therefore should not be treated as such. These are only guidelines with which you can determine how much force may be considered acceptable for you to use to defend yourself in the case of a physical confrontation.

Self-defense Against Unprovoked Assault Section 34-C.C.C.

(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.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if:

(a) he or she causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and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 or she believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

Factors to Help You Determine if You Are in Imminent Danger of Being Assaulted

* Did the assailant have or appear to have the ability to physically assault you in the way you perceived?
* Did the assailant demonstrate intent? Did his or her words, actions or body language lead you to believe the assailant had the intent of attacking you?
* Did the assailant have the means to attack you?

Explanation of Defender - Assailant Factors

Age. An older person who is confronted with a much younger assailant may need to use a much greater level of force to defend him or herself. Conversely, it would be expected that a younger person who is confronted by a much older assailant should not have to use as much force to defend himself.

Size. A relatively small person who encounters a large assailant may need to use greater levels of force in order to defend himself.

Gender. A female defender who is assaulted by a male assailant would probably need to apply a greater level of force in to successfully defend herself.

Skill Level. The skill level of the defender and the assailant also enters into the use of force determination. The defender facing an assailant whose skill level is clearly higher than that of the defender may need to use a higher level of force to defend himself.

Disability. Persons with physical disabilities are much more likely to be injured during a physical assault and would likely need to use any means at their disposal in order to successfully defend themselves.

Explanation of the Totality of the Circumstances

Imminent Danger: The assailant is known to be armed.
Special Knowledge: The assailant is known to have special skills which pose a greater threat.
Injury/Exhaustion: The defender is injured or exhausted.
Multiple Assailants: The defender must face more than one attacker.
Ground Fighting: The defender faces multiple tactical disadvantages (i.e. body weight, debris, communicable disease, weapons, multiple assailants, decreased environmental opportunities.)

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