In His Own Defence
Nov. 18th, 2004 11:57 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ciroccojHere are two provisions of the incoherent self-defence laws currently in use in Canada, which I have to somehow try to, um, cohere for my final Drafting assignment.
Self-Defence
34. (1) Every one 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 is necessary to enable him to defend himself.
34. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
Say what, you ask? OK, picture this: Peter Provocateur walks up to Victor Victim and says something unkind about Victor's mother. Victor raises his fist and says "I'ma smasha yer face in." Peter takes out a knife and stabs Victor, and Victor becomes very dead. Peter uses the defence in section 34(2), and gets off because the judge believes that Victor, being very large, could be reasonably thought to have been threatening Pete with death.
Peter's brother Paul Provocateur walks up to Vonny Victim and says something unkind about Vonny's brother, the late Victor Victim. Vonny raises his fist and says, "I'ma smasha yer face in," because the Victim brothers are not a highly imaginative crew. Paul takes out a knife and hits Vonny on the face with it, because the Provocateur brothers are violent but creative, and Vonny becomes very bruised. Paul cannot use section 34(1) because that is intended only for those who have been "unlawfully assaulted without having provoked the assault", and he cannot use section 34(2) because he did not cause "death or grievous bodily harm". He gets convicted of assault.
Conclusion: Victor is dead, Peter is free, Vonny is bruised, Paul is in jail. Make sense?
Here's what our chief justice had to say on part of the problem in R. v. McIntosh, [1995] 1 S.C.R. 686,
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First Lamer describes the case at hand, involving a disc jockey and his victim. At one point Lamer CJ feels it necessary to get specific:
¶ 2 Words were exchanged. The respondent testified that he told the deceased, "Get my fucking amp because I need it. Go suck your mother and bring my fucking amp."
I think Lamer got a little chuckle out of being able to use the f-word in a legal document. He finishes describing the events and initial trial, then gets down to business.
¶ 14 This case raises a question of pure statutory interpretation: Is the self-defence justification in s. 34(2) of the Criminal Code available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself? The trial judge, Moldaver J., construed s. 34(2) as not applying in such a circumstance. The Ontario Court of Appeal disagreed.
...
¶ 16 As a preliminary comment, I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects. ... During counsel's objections to his charge on ss. 34 and 35, the trial judge commented, "Well, it seems to me these sections of the Criminal Code are unbelievably confusing." I agree with this observation.
...
¶ 41 Even though I agree with the Crown that the interpretation of s. 34(2) which makes it available to initial aggressors may be somewhat illogical ... I do not believe that such considerations should lead this Court to narrow a statutory defence. Parliament, after all, has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly.
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My Drafting prof, BTW, has rather harsh words for Lamer's wussing out of this one.
***
Here's my quirkylink of the day:
http://www.wftv.com/newsofthestrange/index.html
In the upper right hand side, under the heading "Strange News Photos," there's a small picture of a shark leaping out of the water accompanied by a description of a slideshow. Click on the link that says"Take A Look!"
Self-Defence
34. (1) Every one 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 is necessary to enable him to defend himself.
34. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
- he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
- he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
Say what, you ask? OK, picture this: Peter Provocateur walks up to Victor Victim and says something unkind about Victor's mother. Victor raises his fist and says "I'ma smasha yer face in." Peter takes out a knife and stabs Victor, and Victor becomes very dead. Peter uses the defence in section 34(2), and gets off because the judge believes that Victor, being very large, could be reasonably thought to have been threatening Pete with death.
Peter's brother Paul Provocateur walks up to Vonny Victim and says something unkind about Vonny's brother, the late Victor Victim. Vonny raises his fist and says, "I'ma smasha yer face in," because the Victim brothers are not a highly imaginative crew. Paul takes out a knife and hits Vonny on the face with it, because the Provocateur brothers are violent but creative, and Vonny becomes very bruised. Paul cannot use section 34(1) because that is intended only for those who have been "unlawfully assaulted without having provoked the assault", and he cannot use section 34(2) because he did not cause "death or grievous bodily harm". He gets convicted of assault.
Conclusion: Victor is dead, Peter is free, Vonny is bruised, Paul is in jail. Make sense?
Here's what our chief justice had to say on part of the problem in R. v. McIntosh, [1995] 1 S.C.R. 686,
First Lamer describes the case at hand, involving a disc jockey and his victim. At one point Lamer CJ feels it necessary to get specific:
¶ 2 Words were exchanged. The respondent testified that he told the deceased, "Get my fucking amp because I need it. Go suck your mother and bring my fucking amp."
I think Lamer got a little chuckle out of being able to use the f-word in a legal document. He finishes describing the events and initial trial, then gets down to business.
¶ 14 This case raises a question of pure statutory interpretation: Is the self-defence justification in s. 34(2) of the Criminal Code available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself? The trial judge, Moldaver J., construed s. 34(2) as not applying in such a circumstance. The Ontario Court of Appeal disagreed.
...
¶ 16 As a preliminary comment, I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects. ... During counsel's objections to his charge on ss. 34 and 35, the trial judge commented, "Well, it seems to me these sections of the Criminal Code are unbelievably confusing." I agree with this observation.
...
¶ 41 Even though I agree with the Crown that the interpretation of s. 34(2) which makes it available to initial aggressors may be somewhat illogical ... I do not believe that such considerations should lead this Court to narrow a statutory defence. Parliament, after all, has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly.
My Drafting prof, BTW, has rather harsh words for Lamer's wussing out of this one.
Here's my quirkylink of the day:
http://www.wftv.com/newsofthestrange/index.html
In the upper right hand side, under the heading "Strange News Photos," there's a small picture of a shark leaping out of the water accompanied by a description of a slideshow. Click on the link that says"Take A Look!"
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no subject
Date: 2004-11-18 09:18 am (UTC)no subject
Date: 2004-11-18 09:22 am (UTC)::giggling:: Chief Justice 'Lamer.' Hee :)
How about this real life case
Date: 2004-11-18 12:17 pm (UTC)http://www.kansascity.com/mld/kansascity/news/nation/10209017.htm?1c
it was a mandatory sentencing thing because he had a handgun on him