5. Use of Force to Protect Other People

Justice asks the question of whether the current law that restricts the defence of others to those “under one’s protection”, s. 37, ought to be expanded to include persons beyond the narrow category of those who one is legally obliged to protect, such as one’s children and spouse.

CAEFS supports the view that we ought to expand the defence beyond killing to protect third persons “under one’s protection”. It is clear that the current wording of s. 37 may prevent successful reliance on self-defence for women whose relatives, friends, or neighbours were threatened by the deceased, as a way to control or threaten the accused. We also want to ensure that those brave people who intervene to protect total strangers are not denied a defence. While CAEFS recognizes that s. 27 of the Criminal Code, discussed below, should immunize this action, we would argue that it is too broad in permitting violent defence of property, excepting Aboriginal peoples in the circumstances described below, under Defence of Property. CAEFS thus supports Judge Ratushny’s recommendation that citizens be lawfully able to use force to defend any other person.

6. Judging the Circumstances; Judging the Force

Justice asks the question of whether the current way in which we assess the appropriate circumstances for the use of self-defensive violence in s. 34 ought to be retained. The current test asks both whether the accused person actually believed that force was needed and whether that belief was also objectively “reasonable”. Justice asks whether we should instead adopt a purely subjective test and abandon the restriction that is imposed through the objective, “reasonableness’ requirement.

Justice also asks whether we should retain this same test for the assessment of the degree of force that the accused used in self-defence. The current law under s. 34 (2) requires that the accused both actually and reasonably believe that the degree of force used was necessary to avert the anticipated harm. Again Justice suggests the possibility of reverting to a purely subjective test with respect to the assessment of the degree of force used by the defender.

CAEFS supports the retention of a mixed subjective-objective test for both the danger faced by the accused or another and the need to use the degree of violence actually employed by the accused. This standard mirrors the test used by the current law and by the Self-Defence Review: did the accused actually and reasonably believe that the danger existed and did she actually and reasonably believe that she needed to use the force used to prevent it?