INTRODUCTION AND BRIEF DESCRIPTION
Section 34(2) outlines factors to consider when determining if the use of force in a situation was reasonable.
SECTION WORDING
34(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 or 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 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.
EXPLANATION
Section 34(2) of the Criminal Code of Canada outlines the factors that must be considered by courts when determining whether an act committed in self-defence was reasonable in the circumstances. This section allows individuals to use force to defend themselves or others from harm, but only if their actions were proportional to the threat faced. The first factor that the court must consider is the nature of the force or threat that was present. The court will look at whether the force or threat was justifiable or if it was excessive. The court will also examine whether the use of force was imminent and whether other means were available to respond to the potential use of force. The next factor to be considered is the person's role in the incident. Courts will examine whether the person was acting in a lawful way and whether their actions were necessary to prevent harm. Other factors to be considered include whether any party to the incident used or threatened to use a weapon; the size, age, gender, and physical capabilities of the parties to the incident; and the nature, duration, and history of any relationship between the parties involved. Additionally, the Court will consider any history of interaction or communication between the parties to the incident; the nature and proportionality of the person's response to the use or threat of force; and whether the act committed was in response to a use or threat of force that the person knew was lawful. Overall, Section 34(2) is designed to ensure that individuals are able to defend themselves or others from harm without facing criminal charges, but only if their actions were reasonable in the circumstances. By laying out the factors that must be considered, this section ensures that any use of force is proportional to the threat faced and that the person using the force did so in a manner that was necessary and justifiable.
COMMENTARY
Section 34(2) of the Criminal Code of Canada sets out the factors that a court must consider in determining whether a person's use of force in self-defense was reasonable in the circumstances. This provision is important because it recognizes that people have a right to defend themselves, but also imposes limits on that right to ensure that the use of force is not excessive or unjustified. The first factor that the court must consider is the nature of the force or threat. This means that the court will consider whether the force used by the other party was reasonable in the circumstances, and whether the degree of force used by the person claiming self-defense was proportionate to the threat they faced. For example, if someone is attacked with a knife, they may be justified in using force to defend themselves, but if they respond with deadly force when the knife wielder was not actually intending to harm them, their use of force may not be considered reasonable. The second factor is 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. This means that the court will consider whether the person claiming self-defense had other options available to them, such as seeking help, retreating, or using non-lethal force. For example, if someone is confronted by an unarmed attacker and has the option to run away, they may not be justified in using deadly force. The third factor is the person's role in the incident. This means that the court will consider whether the person claiming self-defense was an innocent victim, or whether they played a role in initiating or escalating the incident. For example, if someone provokes a fight and then claims self-defense when they use force to defend themselves, their use of force may not be considered reasonable. The fourth factor is whether any party to the incident used or threatened to use a weapon. This means that the court will consider whether the use of force by either party was escalated by the presence of a weapon. For example, if someone is attacked with a weapon, they may be justified in using deadly force to defend themselves, but if they respond with lethal force when the attacker was not actually using the weapon, their use of force may not be considered reasonable. The fifth factor is the size, age, gender, and physical capabilities of the parties to the incident. This means that the court will consider whether the person claiming self-defense was at a disadvantage compared to the other party. For example, if someone is attacked by a much larger and stronger person, they may be justified in using force to defend themselves, but if they respond with excessive force when they were not actually in danger, their use of force may not be considered reasonable. The sixth factor is 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. This means that the court will consider whether there was a history of violence or hostility between the parties, or whether the incident was an isolated incident. For example, if someone has a long-standing feud with another person and uses force in response to a minor incident, their use of force may not be considered reasonable. The seventh factor is any history of interaction or communication between the parties to the incident. This means that the court will consider whether there was any prior communication or relationship between the parties that may have influenced the use of force. For example, if someone had been threatened by the other party before, they may be justified in using force to defend themselves. The eighth and final factor is the nature and proportionality of the person's response to the use or threat of force. This means that the court will consider whether the person's use of force was proportionate to the threat they faced. For example, if someone is being threatened with non-lethal force, they may not be justified in using deadly force to defend themselves. Overall, Section 34(2) of the Criminal Code of Canada strikes a balance between the right of individuals to defend themselves and the need to ensure that the use of force is not excessive or unjustified. By setting out these factors, the provision helps to guide the court in making a fair and reasonable assessment of the circumstances surrounding the use of force in self-defense.
STRATEGY
Section 34(2) of the Criminal Code of Canada governs the use of force in self-defence or defence of others. When a person uses force to defend themselves or others, they are at risk of being charged with a criminal offence. However, section 34(2) provides a legal defence if the use of force was reasonable in the circumstances. Here, we will discuss strategic considerations when dealing with this section of the Criminal Code and offer some strategies that could be employed. The first strategic consideration is to be prepared. This means understanding the law and knowing the factors that the court will consider when determining whether the use of force was reasonable in the circumstances. It also means being mentally and physically prepared to defend oneself or others if necessary. The second strategic consideration is to avoid using excessive force. The law recognizes that a person has a right to defend themselves, but this right is not unlimited. If a person uses more force than necessary to protect themselves or others, they may lose the legal defence of self-defence. Therefore, it is essential to use only the force necessary to neutralize the threat. The third strategic consideration is to document the incident. This means recording the details of what happened, including the sequence of events, the nature of the threat, and any injuries sustained. If the incident goes to court, having a detailed record can be useful in establishing that the force used was reasonable. The fourth strategic consideration is to consider alternatives to using force. This means exploring other options, such as de-escalation techniques or escape, that could mitigate or neutralize the threat without resorting to violence. The fifth strategic consideration is to seek legal advice. If a person is involved in an incident where they use force in self-defence or defence of others, they should consult with a lawyer who specializes in criminal law. A lawyer can advise them on their legal rights and obligations and help them navigate the legal system. In terms of strategies that could be employed when dealing with section 34(2) of the Criminal Code, the following may be useful: - Avoid using force unless it is absolutely necessary. - Use only enough force to neutralize the threat. - Document the incident, including any injuries sustained. - Consider alternatives to using force, such as de-escalation techniques or escape. - Seek legal advice if facing criminal charges. In conclusion, the use of force in self-defence or defence of others is a complex area of the law. Understanding the legal principles and key factors that the court will consider can help individuals make informed decisions when faced with a threat. Employing strategies that emphasize preparation, avoiding excessive force, documenting the incident, considering alternatives to using force, and seeking legal advice can help individuals navigate the legal system and mount a successful legal defence.