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Chapter 12

Chapter 12 Criminal Offences

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John Irwin

Chapter 12: Self Defence and Defence of Property Structure of the Criminal Code Provisison  Number of provisions justify self defense  25-33; o justification of force by those individuals who are charged wit hteh adminstration and efnorcement of law in canada  34-42; o Circusmtance in which a private citizen defend person or property agsint unlawful attack Self Defence against an unlawful and unprovoked assault where the defendant does not intent to to inflict death or grievous bodily harm  34 o Everyone who is unlawfully assault without having provoked the assault is justified in repelling the force by force if the force he uses is not intended to cause death or grievious bodily and is no more necessary to enable him to defend himself  Applicable for unprovoked assault; • And did not intent to cause death or grievous bodily harm  34.1; requirment that force employed mustb e no more than necessary to enable the accused to defend o Not purely objective test  Belief that there was imminent danger from an attack may be reasonable althought he may be mistake in his belief  Person cannot be expected to weight to a nicety, the exact measure of necessary defensive action o Right to self defence even if he or she does not act out of fear for his or her pwersonality safety o Mutual combat cannot argue that there was no provoking the assault o Unintentional infliction of death or grieveous harm;  Force itself and not the conseqeunce of the force used which is justified if the limitng conditions of the statue are met • Accuses persons response to assault is proportionate, the fata conseqeunces are not relevant to the application of this section Self Defence against an unalwful assault where the accused either intentionally or unintentionally inflicts death or grievious bodily harm 34.2  Unlawful assaullted and who causes death or GBH in repelling the assault is ustified o He cause it under reaosnable apprehension of death or GBH from the violence with which the assault was orginally made or wit hthe assailants puruses his purposes and o He believes on reasonable grounsd the cannot otherwise preserve himself from death or GBH  Two fundamental different between 34 1 and 2 o (2) applies even if the accused was the intial aggressor in the series of event that lead to the use of extreme force in self defence  No require the force to be proportionate to the inflicted assailant;  Subjective factors; , not whether the accused was actually in danger of death or grievous bodily harm or whether causing death was necessary • But because there was reasonable apprehension of death / GBH • Believed on r./pg could not otherwise preserve himself from death or grievous bodily harm • Imminent dnager; action was necessary based on reasonable grounds; syubjective o What would a reaosnable person do o The imminence of danger he was threatende o And the force necessary to defend  Based on the reasonableness of the accused beliefs rather than objective proportionality of force used in self defence  Intoxication relevance to self defence; being drunk made them perceive a threat where no threat existed • Intoxication is irrelatnat in the determination of the validty of the defendants claim of self defence o Intoxication = factor in inducing honest mistake NOT it cannot induce a mistake based on the reasonable grounds o 34 1  includes without having provoked the assault and (2) does not include  Flight from ones home is not an reasonable option for slef preervation and that the defence of self defence will still apply even if there is another way out of thehouse o Home is already the last line of defense against an assailant o Principle is that within ones home the need not retreat from assailant before claiming the dfence of self defence  Retreat maybe irreleant consideration at home, but it applicable when attacked elsewhere  34.2 ; there are situations where the accused can raise the defense of self defence even if the accused does not have the intent to kill or caus GBH  There is no formal require that the danger be imminent; o Imminence only one factor which jury should weight; if the accused should had a reasonable apprehension of danger or a reasonable belief that she could extricate herself otherwise then by killing the attacker  R.v.Petel three constitutive elements of self defense o Existence of an ulawful assault o Reasonable apprehension of a risk of death or GBH o Reasonableieve that it is not possible to preserveo neself from harm except by killing the adversary  If any of these elements lacks an air of relaity the defence shouldnot be put ot the jury  Three elements has a subjective and objective component; • Acctual perception = subjective • Accused must be reasonable basis of the situation he perceives ; is
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