Self-Defense law: Know your rights
Most people do not know exactly what is their rights under the law to protect themselves, their family or their property. What is allowed? the information below outlines the changes in the self-defense law act under Canadian Law.
Background of Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-26, An Act to amend the Criminal Code (Citizen’s arrest and the defence of property and persons). The members of the Association agree in principle with the proposed changes to this Act, however we do have some concerns that may arise in the implementation of this Act. We outline them here and look forward to your questions and comments.
The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 700 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report and the Justice Directory of Services. We also organize the “Canadian Congress on Criminal Justice” every two years.
History & Relevant Issues Pertaining to the Legislation
The proposed amendments address several aspects of the Citizen’s arrest provisions currently existing in the Criminal Code. This legislation would expand the legal authority for a private citizen to make an arrest within a reasonable period of time after they find a person committing a criminal offence either on or in relation to their property while ensuring the proper balance between the powers of citizens and those of the police. It would also bring much-needed reforms to simplify the complex Criminal Code provisions on self-defense law and defense of property, and clarify where reasonable use of force is permitted in relation to the above.
While the prospect of a citizen’s arrest has been a common law tradition for decades, these amendments represent the first significant changes made since the law’s inception that dates back to the early 1800’s. Police and legal experts state that interpretation of the existing legislation is problematic as it is unclear and confusing.
A key change to the wording of this bill relates to the temporal aspect or immediacy of the citizen’s arrest. The change will afford greater latitude to the citizen in determining whether there is threat to person or property and hence react appropriately.
While these amendments reinforce the role of police as the front line of protection against crime, the proposed amendments include statements that the citizen can act when “it is not feasible in the circumstances” for a police officer to make the arrest. This re-wording of the Act is intended to ensure that people acting in good faith will be protected. Clarifying the law and streamlining statutory defenses may assist prosecutors and police in exercising their discretion not to lay a charge or proceed with a prosecution in cases of self-defence.
Amendments to the self-defense law provisions would repeal the current complex self-defense law provisions spread over four sections of the Criminal Code (s.34-37) and create one new self-defense law provision. It would permit a person who reasonably believes themselves or others to be at risk of the threat of force, or of acts of force, to commit a reasonable act to protect themselves or others.
Amendments to the defense of property provisions would repeal the confusing defense of property language that is now spread over five sections of the Criminal Code (s.38-42). One new defense of property provision would be created, eliminating the many distinctions regarding acts a person can take in defense of different types of property. The new provision would permit a person in “peaceable possession” of a property to commit a reasonable act (including the use of force) for the purpose of protecting that property from being taken, damaged or trespassed upon.
Challenges with Implementation
The dangers in implementing these changes concern the risk of vigilantism as well as an individual getting injured while attempting to make a citizen’s arrest. In addition, removing the term ‘provocation’ while adding ‘threat’ of force as a justification for the use of force significantly broadens the law. We should be especially careful in circumstances wherein a party in an established conjugal relationship uses the cover of self-defence to carry out violence against the other.