INTRODUCTION AND BRIEF DESCRIPTION
This section states that self-defense does not apply if the other person is acting lawfully, unless the defender believes on reasonable grounds that the other person is acting unlawfully.
SECTION WORDING
35(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
EXPLANATION
Section 35(3) of the Criminal Code of Canada serves as an exception to the general rule of self-defense. According to this subsection, a person cannot claim self-defense if the other person they are defending themselves against is acting within the legal boundaries of their duties in the administration or enforcement of the law. This means that if a police officer or any other person authorized by law to act in a certain manner uses force against another person, the latter cannot claim self-defense unless they believed that the former was acting unlawfully. The reason behind this exception is to promote respect for the law and to prevent people from taking the law into their own hands. It ensures that people do not use force against law enforcement officers who are carrying out their lawful duties, which may include executing a warrant, making an arrest or using force to protect themselves or others. However, this exception does not absolve law enforcement officers from their duty to use force only when necessary and in proportion to the threat faced. In summary, section 35(3) of the Criminal Code of Canada is a provision that balances the rights of individuals to self-defense with the need to ensure that law enforcement officers can carry out their duties without fear of being assaulted or attacked. It is an exception to the general rule that allows people to use force to defend themselves against unlawful attacks.
COMMENTARY
Section 35(3) of the Criminal Code of Canada is an important and necessary provision that provides clarity around the circumstances under which a person may use force against someone conducting law enforcement duties. Specifically, it outlines the exceptional circumstances under which a person can use force against someone who is administering or enforcing the law. The provision is built around a key conditional statement, which reads as follows: "Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully." What this means is that if someone is carrying out a lawful activity, such as a police officer arresting someone who has committed a crime, a member of the public cannot use force to obstruct or interfere with this activity. This is a reasonable and necessary measure, as without this provision, members of the public could claim self-defense or use of force after attacking someone who is simply doing their job. However, there is an important caveat to this provision, which allows for the use of force if the person who is committing the act that is deemed an offence believes that the other person is acting unlawfully. This requires that the person who uses force has a legitimate belief that the person carrying out the law enforcement activity is not doing so within the bounds of the law. The use of the term "reasonable grounds" means that this belief must be based on objective and factual evidence, rather than mere speculation or suspicion. This provision therefore strikes a delicate balance between the rights of law enforcement officials to conduct their duties without undue obstruction, and the rights of individuals to use force in self-defense or in defense of others. It ensures that individuals cannot use force to interfere with lawful activities, while also allowing for appropriate use of force in situations where individuals believe that the actions of law enforcement officials are illegal or exceed the scope of their authority. Ultimately, section 35(3) of the Criminal Code of Canada is an important provision that helps to ensure that the administration of justice is carried out in a fair and equitable manner. By clearly delineating the circumstances under which the use of force is acceptable, it helps to prevent abuse of power and coercion by those carrying out law enforcement activities, while also protecting the rights of individuals to defend themselves and others when necessary.
STRATEGY
Section 35(3) of the Criminal Code of Canada is an important legal provision that outlines the circumstances under which a person can lawfully commit an act that would otherwise be an offence under Section 35(1). This provision provides an exception to the general rule that it is an offence to resist or obstruct a person who is lawfully engaged in the administration or enforcement of the law. When dealing with Section 35(3) of the Criminal Code, there are several strategic considerations that need to be taken into account. These include the following: 1. The nature of the conduct: The first consideration when dealing with Section 35(3) is to determine whether the conduct of the other person is authorized or required by law. If the conduct is not authorized or required by law, then Section 35(3) does not apply, and any resistance or obstruction of the person could result in criminal charges being laid. 2. The knowledge and beliefs of the accused: The second consideration when dealing with this provision is the knowledge and beliefs of the person who is alleged to have committed the offence. To rely on the defence under Section 35(3), the accused must have a reasonable belief that the other person is acting unlawfully. If the accused did not have a reasonable belief that the other person was acting unlawfully, then the defence will not apply. 3. The circumstances of the case: The third consideration when dealing with this provision is the specific circumstances of the case. The defence under Section 35(3) will only apply in certain circumstances, and it will be up to the accused to demonstrate that the defence applies. The accused may need to present evidence to show that the other person was acting unlawfully or that they had a reasonable belief that the other person was acting unlawfully. Given these strategic considerations, there are several strategies that could be employed when dealing with this provision. These include the following: 1. Building a robust defence: To successfully rely on the defence under Section 35(3), the accused must have a reasonable belief that the other person was acting unlawfully. Therefore, one strategy that could be employed is to gather evidence to demonstrate that the other person was acting unlawfully. This could involve obtaining witness statements, video evidence, or other forms of evidence that are relevant to the case. 2. Seeking legal advice: Given the complexity of this provision, it is essential to seek legal advice when dealing with any criminal charge that involves the obstruction of a person who is engaged in the administration or enforcement of the law. A criminal defence lawyer can help to build a robust defence and ensure that the accused's rights are protected throughout the legal process. 3. Negotiating with the prosecution: In some cases, it may be possible to negotiate with the prosecution to have charges dropped or reduced. This could involve demonstrating that the accused had a reasonable belief that the other person was acting unlawfully or presenting other evidence that weakens the prosecution's case. In conclusion, the defence under Section 35(3) of the Criminal Code of Canada provides an exception to the general rule that it is an offence to resist or obstruct a person who is lawfully engaged in the administration or enforcement of the law. When dealing with this provision, it is essential to consider the specific circumstances of the case and develop a robust defence strategy that takes into account the knowledge and beliefs of the accused. Seeking legal advice and negotiating with the prosecution may also be effective strategies in some cases.