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S. 35 (1) Every one
who has without justification assaulted another but did not commence the
assault with intent to cause death or grievous bodily harm, or has without
justification provoked an assault on himself by another, may justify the use of
force subsequent to the assault if |
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(a) he uses the
force |
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(i) under reasonable apprehension
of death or grievous bodily harm from the violence of the person whom he has
assaulted or provoked, and |
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(ii) in the belief, on reasonable
grounds, that it is necessary in order to preserve himself from death or
grievous bodily harm; |
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(b) he did not, at
any time before the necessity of preserving himself from death or grievous
bodily harm arose, endeavour to cause death or grievous bodily harm; and |
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(c) he declined
further conflict and quitted or retreated from it as far as it was feasible to
do so before the necessity of preserving himself from death or grievous bodily
harm arose. |
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S. 36 Provocation
includes, for the purposes of sections 34 and 35, provocation by blows, words
or gestures. |
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S. 37
(1) Every one is justified in using force to
defend himself or any one under his protection from assault, if he uses no more
force than is necessary to prevent the assault or the repetition of it; |
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(2) Nothing in this section shall be deemed to
justify the wilful infliction of any hurt or mischief that is excessive, having
regard to the nature of the assault that the force used was intended to
prevent. |
CAEFS’ specific comments on the federal consultation
proposal with respect to the reform of self-defence are organized generally to
correspond to the headings used in the document.
1. Simplifying the
Law
The first question that Justice poses is whether there should be
one general self-defence provision, much simplified over the current four
provisions reproduced above, that would apply to all accused in all situations.
CAEFS is opposed to the creation of one “general rule”
to cover all situations of self-defence. All of the feminist work on issues
that affect women suggests that "general rules of general
application" have the effect of promoting or reinforcing inequalities in
the guise of "neutrality" (Lahey, 1984; Nowlin, 1993). It is only
through more informed and contextual analyses that the specific effects for
women are discernible and amenable to a response.
This does not mean that CAEFS supports complex or impenetrable
legal rules, but rather that we ought first to identify and inform ourselves
about the range and type of situations in which self-defensive violence is
invoked in fact and in law. We then ask whether there are certain patterns,
situations, perpetrators, and victims that require a different legal policy
response. Only then should we begin to craft legal responses for the specific
dilemmas presented by the context.
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