You’re at a bar and someone picks a fight with you. What first began as a verbal barrage quickly turns into shirt-grabbing and shoving. Do you shove back? Are you allowed to take a swing? Is your responsibility to run away? At what point can you defend yourself against this aggression, Here’s how it works. If, in the course of defending yourself, you assault, injure, maim or worse, fatally wound the attacker, you may face substantial charges, from assault all the way up to murder. The question for the court is whether your actions met the threshold for self-defence, and if not, whether you’re guilty of a crime.
DEFENDING YOURSELF IN A BAR FIGHT. IS IT OK TO HIT A VIOLENT DRUNK?
Let’s use the bar fight example. You’re out at a pub, celebrating a friend’s birthday and through the course of the night, you exchange one too many drunken words with your fellow bar patrons. Now someone is upset over something you said. They want to fight. At first, you brush them off, perhaps to shoot a game of pool instead with some other people. But the aggressor is persistent. Voices are raised, and soon, the barkeeper is telling everyone involved to get out.
As soon as you exit the bar, the aggressor is in your face. He really wants to fight – you’re not even entirely sure what triggered him. He’s a bigger and thicker guy. Tough looking, like he’s done this before. You start getting shoved back, taking a few steps backward, but he’s still coming. You need to slow him down. You throw an elbow, then a punch, then another. To your surprise, the aggressor tumbles back, falls on the ground, still breathing and making a choking sound, but motionless. You later learn the man died in hospital, as a result of the trauma from when his head hit the ground.
The police arrive. You’re arrested, and soon discover you’ve been charged with manslaughter. In this case, should you be guilty of the offence or are you protected under Canada’s self-defence laws? Did you go too far in retaliating to what were open-fisted shoves from a bigger person? Should you have tried to run? What would someone else do in a situation like this?
THIS BAR FIGHT WAS A REAL CASE WHERE SOMEONE DIED. IT WAS DECIDED IN SASKATCHEWAN
This was a real event that involved a young man in his 20s from Moose Jaw, Saskatchewan. The man was acquitted after a careful review of Canada’s self-defence laws by the presiding judge in the Court of Queen’s Bench, Saskatchewan’s superior court. The judge determined that his case met the threshold required for Canada’s self-defence laws s. 34(1) of the Criminal Code, which states:
a) the accused must have been unlawfully assaulted by the victim;
b) the accused must not have provoked the unlawful assault by the victim;
c) the force used by the accused was not intended to cause death or grievous bodily harm to the victim; and
d) the force used by the accused was no more than necessary to enable the accused to defend him or herself
Under Canada’s traditional self-defence laws, to qualify for a self-defence claim, someone accused of a crime must meet all the thresholds under a specific self-defence section. In this case, the judge determined that the young man met all the conditions of s. 34(1), and as a result, acquitted him of the manslaughter charge.
First, the judge determined the man was unlawfully assaulted, since the aggressor intentionally applied force to him without his consent.
Secondly, the court had to figure out whether the young man played a part in provoking the fight. Testimony from witnesses found that it was the other man who said words such as, “fight me, fight me” before pushing the young man in the chest. There was no evidence of previous provocation by the accused either. So the judge determined the accused didn’t provoke the fight.
Third. Did the accused mean to cause death or grievous harm? This is about the state of mind, whether you were defending yourself to protect yourself from harm, or whether your intention was to harm the other person. The court accepted evidence that the young man, being the smaller fighter, thought he didn’t have a chance and meant to “slow” the heavier fighter down by elbowing and punching. The court also accepted that the young man couldn’t turn away, since he was worried about exposing his back to the aggressor. He also didn’t want to leave his friends at the bar. Witnesses also said his elbow and punches were fast, almost like “glancing blows” and not attacks with the “full force of his body weight.” As for intent? The young man said he wanted to discourage the heavier man from fighting by giving him a cut lip or bloody nose. The judge accepted the young man didn’t mean to cause death or grievous harm.
Lastly, did the young man use more force than necessary? The judge accounted for factors such as the speed and apparent strength behind the strikes, how big the other man was, how far apart the two fighters were, and whether the young man should have used strikes to retaliate against pushes. The judge accepted that the young man used a proportionate amount of force.
NO ONE HAD ATTACKED ME, BUT I FELT AN ATTACK WAS IMMINENT. CAN I TAKE ACTION?
Yes, you can. S. 37 of the Criminal Code is a confusing section of the Code that’s somewhat redundant. Its intention is to allow someone to use force to defend “anyone under his protection” or “himself” from assault, as long as it’s a proportionate amount of force used. This section has been dissected frequently by judges, with one view being that it covers someone who uses force in self-defence with the intention of causing death or bodily harm.
One successful application of this defence happened in Edmonton. It involved the case of a driver who, after shouting a profanity at police from his car, then tried to run over an officer who ran up to his passenger-side window. The accused’s version was that he was waiting at a traffic light just after shouting the profanity. He didn’t hear the officer speak, and felt threatened when an arm of someone with black clothing appeared at his passenger-side door. The driver said his intention was to move the vehicle into another lane so he could escape. The officer, however, said he almost slipped under the vehicle since the driver turned towards him, and had to quickly move his feel to stop himself from falling.
The judge found that the driver did not mean to cause harm to the officer. And since the officer didn’t fall over, no actual grievous bodily harm was caused. As for whether the amount of force used was proportionate, the judge found the driver was not reckless in the sense that he was trying to escape in a panic.
As a result, the judge found the driver had met the thresholds for defences in both s. 34 and s. 37. Specifically for s. 37, the court found that “as worded, the section would appear to allow some limited pre-emptive actions” if its elements are met. In this case, the officer had merely run up to the driver’s window – it was the driver’s mistake that he was being assaulted – and so his act of self-defence was one made under mistake, and a pre-emptive action, too.
WHAT’S HAS CHANGED WITH CANADA’S SELF-DEFENCE LAWS?
The old rules, as described above, were really about defining the circumstances where someone claimed self-defence, and figuring out whether they met the requirements or “thresholds” to qualify for that section of self-defence.
For example, s. 34 allowed someone to defend themselves against an unprovoked attack. S. 35 covered those who provoked an attack without justification, but then needed to defend against the response from the initial victim. S. 37 covers people who were defending others under their protection, but also somewhat makes s. 34 and s. 35 redundant. S. 36 is a definition of what “provocation” is.
The new version of Canada’s self-defence laws did away with all that and replaced it all with a single section, the new s. 34, which states:
(1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used to threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties prior to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.