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Criminal Law Defences : Self- Defence

Criminal Law Defences : Self- Defence. By: Emily, Darien, Kriston and Nalini. What is self-defence ?. Acknowledges crime has been committed Argues that due to lack of criminal intent accused/victim should not be punished for crime

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Criminal Law Defences : Self- Defence

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  1. Criminal Law Defences:Self-Defence By: Emily, Darien, Kriston and Nalini

  2. What is self-defence? • Acknowledges crime has been committed • Argues that due to lack of criminal intent accused/victim should not be punished for crime • Offers there is a justification (reason for why) alleged act occurred • There is a mensrea but actions are justified on grounds that individuals have the right to defend themselves, their property and others

  3. The criminal Code states: • Section 34. (1) Everyone 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 necessary to enable him to defend himself.

  4. Basic elements of self-defence claims: • (a) accused believed he or she was about to be physically harmed, and • (b) accused used only the force required to avoid the threatened harm • Helps to distinguish between unprovoked assault and those who provoked assault (taunting/assaulting another person)

  5. Three tests of self-defence: • (a) existence of an unlawful assault, • (b) reasonable apprehension of a risk of death or serious bodily harm • (c) reasonable belief that it is not possible to save oneself from harm expect by harming the other person • Accused needs to have a subjective and reasonable belief of all three tests for defence to be acceptable (subjective and objective elements needed)

  6. If you’re a macho man.. • If accused used more force than necessary, this defence is not applicable (depending on circumstances) • Then falls under section 26 of the Criminal Code: Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess. • Basically, (again depending on the circumstances) those who use excessive force to defend themselves may possibly face charges from assault up to murder

  7. Mistake of unlawful assault • Courts can allow a person to qualify for a self-defence claim even if he or she was mistaken to the existence of the unlawful assault • Women who had been threatened by one of two men shot both with gun of attacker; claimed she reasonably (but mistakenly) thought they were both attacking her [R. v. Petel, (1994) 1 S.C.R. 3]

  8. Provoking an assault on another person • Dealing with situations of self-defence in which a person provokes an assault on another person falls under: • Section 35: Everyone 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 upon himself by another, may justify the use of force subsequent to the assault if: • (a) he uses the force: • (i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and • (ii) in the belief, on reasonable and probable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

  9. Continued… • (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 • (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 harm arose.

  10. Self-defence to protect others • Permits a person to use force to defend themselves or a third party (again only using as much force to prevent assault, not ause bodily harm or death) • Law permits a person to defend personal, moveable property only “…if he does not strike or cause bodily harm to the trespasser,” [Section 38(1) of Criminal Code]

  11. Continued… • Law does permit the use of force to defend property (for example ones home) because they are “…justified in using as much force as necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.” [Section 40 of Criminal Code]

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