Note

These comments were forwarded to the Department of Justice Canada.

The end-notes of this document were, in the original document, footnotes.  I have also added some links and an English translation to section 3 of the Penal Code of Austria (note 16).  I have also corrected clerical errors.
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                                                                  "File: c:\François\genpart\selfdef\cons.4

                                                                                         François Lareau, LL.M.
                                                                                         2 October 1998

           Short Commentary -  Consultations - Self-Defence and Defence of Property
 

Introduction

           In July 1998, the Department of Justice Canada issued a consultation paper dealing in part with self-defence and defence of property.¹   My objective in this commentary is to suggest a basic simplification of the law in this area.   The law should be made for the ultimate consumer, the citizen.²
 

            I will make two points in this commentary.   First, there should be only one provision, private defence,³  combining all the existing provisions on self-defence and defence of property.  There are good examples of such an approach in comparative law.  Second,  the law should protect not only the life, body and property of an individual or of another person but also his/her physical liberty.
 

I- One Simple Provision Only
 

           The history of our Criminal Code indicates that we came close of having only one provision for self-defence and defence of property.⁴
 

           One of the four sources of the  Criminal Code, 1892 is  the English Draft Code.⁵    In 1878, the British Government introduced in the House of Commons  Bill 178,  the Criminal Code (Indictable Offences), 1878 Act,  written by James Fitzjames Stephen.   Clauses  119 and 120 dealing with self-defence read as follows:
 

Section 119. [Self-Defence]  The intentional infliction of death or bodily harm is not an offence when it is inflicted by way of self defence against unlawful violence.

Section 120. [Proviso on Foregoing Sections]  The intentional infliction of death or bodily harm is not justified in any of the cases specified in the two sections last preceding, unless the person by whom such death or bodily harm was inflicted used every reasonable means in his power to avoid the necessity for inflicting it at all, and to inflict as little harm as was consistent with attaining his object.

No person shall be deemed to have inflicted in self defence any injury inflicted by him on any such person in a fight from which he might, under all the circumstances of the case, have reasonably been expected to withdraw himself before such injury was inflicted; provided that every person shall be entitled to defend himself, his family, his house, and his property against any unprovoked attack, without being  required to withdraw himself in order to avoid any such attack.⁶

           In the Bill's explanations published by the House of Commons,  Stephen wrote: "It is possible that the law may be slightly altered by Clauses 119 and 120, as the present law on the subject is intricate and confused ....  But the alteration, if any, is very slight."⁷
 

        This Bill died on the order paper and the government created the Criminal Code Bill Commission (Stephen being one of the four Commissioners).  The Commission submitted its report in 1879 that contains a  draft bill of a criminal code that is referred to as the English Draft Code and which modifies greatly the provisions of Bill 178 drafted by Stephen on self-defence.⁹     From two sections in Stephen's Bill 178, we jump to 11 sections in the English Draft Code that form the basis of our present Criminal Code provisions.   These changes are due to the President of the Commission, Lord Blackburn.¹⁰   However, the report of the Commissioners does not contain the reasons for the changes.¹¹   The Attorney General, Sir John Holker, explained later that these changes were an  "amplification" of the subject-matter.¹²

           Criminal law theory explains that a Criminal Code punishes offences committed against protected legal interests, i.e., the State (thus offences against the State), the person (thus offences against the person), property etc.  Private defence gives the right to a person to defend himself/herself against an unlawful  attack against certain legal interests belonging to that person or to another person.  Two of these interests are his/her life (and body) and his/her property.  Criminal law theory also indicates that the four conditions¹³ of self-defence  are: (1) an unlawful attack or the threat of an imminent unlawful attack; (2) the act of defence must be necessary ("the mischief sought to be prevented could not be prevented by less violent means...."¹⁴) ; (3) the act of defence must be proportional to the attack (i.e., the act must be reasonable in the circumstances); (4) the person must have acted to defend himself/herself or another, to repeal or prevent the attack.
 

           Criminal theory of many countries indicates that the conditions for the defence of the person or the defence of property should be the same.  Why should there be different?  On the basis of what principle should the difference be made?  Several countries have adopted this approach in their legislation.  Here are two very good examples that I recommend for your consideration and action:
 

           In the new 1995 Penal Code of the State of Israel, the provisions read:
 

  [unofficial translation] "self-defense
  34J. A person shall not be criminally liable for an act that was immediately necessary in order to repel an unlawful assault involving a tangible danger of injury to his life, his freedom, his body or his property, or that of another; provided, however, that a person does not act in self-defense if he brought about the attack by his own improper behavior, foreseeing that matters might so develop."¹⁵
  ....
  Exceeding the Reasonable
  34P.  The provisions of sections 34J, 34K and 34L do not apply if the act was not reasonable in the circumstances for the purpose of preventing the injury."

          In the 1974, Penal Code of Austria, the provision on self-defence reads in part as follows:
 

  [translation] "Légitime défense
  ARTICLE  3. -  (1)  N'agit pas en violation du droit quiconque fait acte de défense dans la stricte mesure nécessaire pour se protéger lui-même, ou protéger un tiers, contre une agression contraire au droit visant dans l'immédiat ou menaçant directement sa vie, sa santé, son intégrité physique, sa liberté ou ses biens.  L'acte n'est cependant pas justifié, s'il est manifeste que l'agressé n'est menacé que d'un léger dommage et que la défense est disproportionnée par rapport à l'attaque, eu égard en particulier à la gravité des conséquences préjudiciables pour l'agresseur nécessitées par la défense."¹⁶

           Of course, the drafting of the clause on private defence as a justification, requires three other legislative adjustments.  First, there should be other provisions that are excuses.¹⁷   There should be a provision for reasonable mistakes as to the conditions of private defence: on the immediacy of the attack, the threat of an attack, the attack, the proportionality and the necessity.   Parliament should also consider a new excuse recognized in several countries, excessive self- defence due to fear or terror.  Such an excuse would be just for victims of crime and battered women.  Thirdly, "private defence" being a branch of the defence of necessity, the law of necessity as expressed in Perka¹⁸  should be revised at the same time.  I hope to cover some of these points in future papers if time permits.  The unfortunate decision of the Honourable Anne McLellan, Minister of Justice and Attorney General for Canada,  not to continue with a comprehensive recodification of the General Part does however impede a more expanded approach.¹⁹
 

II- Private Defence Should also Include the Liberty of a Person

           The criminal law theory of many countries indicates that private defence also covers the physical liberty of a person when the attack or the threat of the immediate attack threatens this legal interest of a person.  If an individual is kidnaped and is unlawfully detained, private defence should be permitted to enable the individual to free himself and regain his liberty, a fundamental right.  The provisions of the State of Israel and of Austria cited above recognize such a protection.
 

           Do sections 34 and 37 of the Criminal Code justify a defence of the physical liberty of a person if it is attacked or threatened by an immediate attack?  I think so.  First, these provisions have to be read in the context of s. 7 of the Charter that reads: "7. [Life, Liberty and Security of Person] Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" (emphasis added).
 

           Since s. 265(1) of the Criminal Code defines an assault, it is only normal that case-law and some text authors have used this definition for the purpose of defining what constitutes an assault for the purpose of self-defence. This interpretation is too narrow if we study the sources of our Criminal Code.

           Two of the sources²⁰ of the Criminal Code, 1892, the Digest by Stephen and the one by Burbidge,²²   indicate that the concept of assault included the act of depriving another of his liberty.  Both, Stephen and Burbidge write: "An assault is ... the act of depriving another of his liberty ...."²³   Also, the Commissioners in their 1879 Report write in their comments on the English Draft Code : "We take one great principle of the common law to be, that ... it sanctions the defence of a man's person, liberty, and property against illegal violence...."²⁴
 

          Such a wider interpretation of our sources by our courts would solve the false theoretical difficulty raised by Mrs. Justice Wilson in R. v. Lavallee: "The situation of the battered woman as described by Dr.Shane strikes me as somewhat analogous to that of a hostage. If the captor tells her that he will kill her in three days time, is it potentially reasonable for her to seize an opportunity presented on the first day to kill the captor or must she wait until he makes the attempt on the third day?"²⁵   In Lavallee, the law of self-defence was somewhat confused because Mrs. Justice Wilson seems to confuse danger and assault: "It will be observed that s. 34(2)(a) does not actually stipulate that the accused apprehend imminent danger when he or she acts."²⁶    This mistaken approach is again repeated in Pétel: "There is thus no formal requirement that the danger be imminent.  Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger and a reasonable belief that she could not extricate herself otherwise than by killing the attacker."²⁷    An assault and a danger are two different concepts.  An assault (I should say rather an attack) is relevant to private defence while a danger applies to the defence of necessity.
 

        This question of physical liberty was raised in R. v. Ridley,²⁸  where the Criminal Codedefinition of assault was applied: "Although the accused was unlawfully confined at the time, she was not undergoing any application of force to her person and therefore the self-defence provisions of s. 34(1) were inapplicable."
 

Conclusion

          The law of self-defense and defence of property needs to be simplified.  I have made a  suggestion for one justification provision.  This provision should be accompanied with other provisions that are excuses.
 

           Justifications and excuses concern the General Part and the structure of liability that needs to be formulated in order that there be clarity in our criminal law.  In my mind, self-defence and defence of property would be better dealt with in a comprehensive recodification of the General Part.
 

           It is hope that this commentary will indicate some of the problems associated with the piecemeal approach to the reform of the General Part.

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¹Department of Justice Canada, Reforming Criminal Code Defences - Provocation, Self-Defence and Defence of Property - A Consultation Paper,  [Ottawa]: July 1998, [vi], 49 p.

²See Patrick Fitzgerald, "Codes and Codifications: Interpretation, Structure, and Arrangement of Codes", (1990) 2 Criminal Law Forum 127-143 at 129-130.

³One can not use the expression "self-defence" for the defence of property.  The problem does not exist in French with the words "légitime défense".  The expression "private defence" is used in the Indian Penal Code and elsewhere.

⁴Generous use of François Lareau,  Légitime défense et théorie , LL.M. thesis, University of Ottawa, 1992 is made in this commentary.

⁵The Minister of Justice, Sir Thompson, Canada, Debates of the House of Commons, vol. 34, col. 1312 (12 avril 1892) mentions the four sources of our Criminal Code: "... the draft code prepared by the Royal Commission in Great Britain in 1880, on Stephens' [sic] Digest of the Criminal Law, the edition of 1887, Burbidge's Digest of the Canadian Criminal Law of 1889, and the Canadian Statutory Law".   The year 1880 mentioned by Sir Thompson seems mistaken as the report of the Commission was issued in 1879.

⁶Bill 178, Sessional Papers (1878), volume 2 at p. 5.

⁷"Memorandum 'Showing the ALTERATIONS proposed to be made in the existing Law by the CRIMINAL CODE (INDICTABLE OFFENCES) Bill, if Amended, as proposed by the Attorney General'", number 276 in  Sessional Papers (1878), vol. 63, 159 at p. 164.

⁸Criminal Code Bill Commission, Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences: With an Appendix Containing a Draft Code Embodying the Suggestions of the Commissioners, C. 2345 in Sessional Papers (1878-79), volume 20, p. 169 (Chairperson: C.B. Blackburn); also published in Irish University Press Series of British Parliamentary Papers: Royal Commission Select Committee and Other Reports on the Criminal Law with Proceedings Minutes of Evidence Appendix and Index 1847-79, vol. 6, Legal Administration Criminal Law, Dublin: Shannon University Press, 1971.

⁹Ibid., sections 55-65 at pp. 241-243 of Sessional Papers and pp. 73-75 of Command paper number 2345.   Section 55 is, "Self-defence against unprovoked assault";  s. 56: "Self- defence against provoked assault";  s. 57: "Prevention of Assault";  s. 58: "Defence of movable property against trespasser";  s. 59: "Defence of movable property by one having claim of right"; s. 60: "Defence of movable property by person not having claim of right";  s. 61:  "Defence of dwelling-house";  s. 62: "Defence of dwelling-house at night";  s. 63: "Defence of real property";  s. 64: "Assertion of right to house or land"; and s. 65: "Exercise of right of way, etc.".

¹⁰See Henri Elzéar Taschereau, The Criminal Code of the Dominion of Canada As Amended in 1893 With Commentaries, Annotations, Precedents of Indictments, &, &, Toronto: Carswell 1893, p. v.

¹¹R. Cross, "The Making of English Criminal Law: (6) Sir James Fitzjames Stephen", [1978] Crim. L. R. 652, p. 661, writes : "Some of us would give a lot to have been a fly on the wall at those five-hour meetings of the Criminal Code Commissioners".

¹²Parliamentary Debates, 3rd series., vol. 245, col. 313-314 (3 April 1879) at col. 313.

¹³François Lareau, supra, note 4, chapter II on the conditions for the use of self-defence, pp. 75-108 [see http://home.achilles.net/~flareau/thesefinalI2.html].

¹⁴Criminal Code Bill Commission, Sessional Papers, supra, note 8, p. 179.

¹⁵Arnold Enker, "Duress, Self-Defense and Necessity in Israeli Law", (1996) 30 Israel Law Review 188-206 at 206.

¹⁶Les nouveaux codes pénaux de langue allemande: Autriche (1974), République démocratique allemande (1968) et République fédérale d'Allemagne (1975),  Paris: La  Documentation française avec le concours du Centre français de droit comparé, 1981, 565 p.,"Code pénal autrichien", translation by Yvonne Marx and Pierre Chenut, p. 14 at 16 for article 3 (series; Collection des codes pénaux européens du Comité de législation étrangère et de droit international du Ministère de la Justice, t. 4).  The Penal Code of Austria is available in German at the web site of the Buffalo Criminal Law Center, Internet Resources, "http://wings.buffalo.edu/law/bclc/resource.htm".  For an unofficial translation in English from the translation of s. 3(1) in French by the federal translation bureau:

[Translation from a translation] "Self-defence or defence of another
ARTICLE 3. -- (1) No one violates the law who defends himself using no more force than necessary to protect himself or another against an unlawful assault immediately or directly threatening his life, health, physical integrity, freedom or property.  Such an act is not justified, however, if it is clear that the person attacked is threatened with only minor harm and that the defence is disproportionate to the attck, having regard in particular to the gravity of the harm caused to the aggressor as a result of the defence."

¹⁸Ibid.

¹⁹In a letter dated 16 April 1998, the Honorable Anne McLellan wrote to François Lareau:

"While the Department of Justice, at the direction of my predecessor, the Honourable Allan Rock, conducted consultations on the reform of the General Part of the Criminal Code, it is my not [sic] intention to undertake a comprehensive recodification of the General Part.  Instead, I propose to focus our energies in consulting on a limited number of issues of public concern and importance within the General Part.  I will soon  be starting consultations on possible reforms to the law of self-defence, provocation and the defence of property, bearing in mind the recommendations for reform made in the Ratushny Report. These are key policy issues that need to be reviewed and I hope that we may have the benefit of your comments at the appropriate time." [excerpt only]

²¹James Fitzjames Stephen, A Digest of the Criminal Law (Crimes and Punishments), 4th ed.,  London: MacMillan, 1887.

²²George Wheelock Burbidge, A Digest of the Criminal Law of Canada (Crimes and Punishments), Toronto: Carswell, 1880 (reprint: Toronto: Carswell, 1980).

²³Stephen, A Digest of the Criminal Law, supra, note 21,  article 241(c), p. 184 and Burbidge, ibid., article 309(c), p. 240.  Subsection 161(d.) of Bill 178, Criminal Code (Indictable Offences), 1878, supra, note 6 at p. 85 reads in part as follows: "An assault is - ...(d.) The act of unlawfully and voluntarily depriving another of his liberty...."

²⁴Criminal Code Bill Commission, supra, note 8 (I have underlined).

²⁵R. v. Lavallee, [1990] 1 S.C.R. 852, 889.

²⁶Ibid., at p. 876.

²⁷R. v. Pétel, [1994] 1 S.C.R. 3 at pp. 13-14 (CJ Lamer).

²⁸(1987) 3 W.C.B. (2d) 89 (B.C.Co.Ct.; 6 May 1987; Enrico Co.Ct.J.); see also R. v. Chivers, [1988] N.W.T.R. 124  at 132-133 (S.C.; de Weerdt J.).
 

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