Self Defence and Canadian Law: The Need to Retreat
Does Canadian self defence law demand that we must retreat before we can legally use force likely to cause death in self defence?
Canadian self defence law is a Federal jurisdiction. It is written up in the Criminal Code of Canada (CCC). This means that one rule applies to all of Canada, side stepping the myriad state laws about self defense in the US that are often contradictory.
The pertinent sections are CCC 34 - 37, (pages 31 - 44 of Canadian Law and Self Defence).
Précis of 34. (1):
(1) You may fight someone who is assaulting you if you did not provoke the assault and are not trying to kill him or do him grievous bodily harm.
Précis of 34. (2):
(2) You are justified in causing grievous bodily harm or death in your self defence if various conditions are met. (Details in Canadian Law and Self Defence.)
But it is Section 35 that tells Canadians the exact situation which forces us to retreat before we may be justified to use force.
S. 35 – Self Defence in Case of Aggression
S. 35. Everyone who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm or has without justification provoked an assault upon himself by another may justify the use of force sub-sequent to the assault if
(a) he uses the force
(i) from under reasonable apprehension of death or grievous bodily harm from the vio- lence of the person provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
The need to retreat applies to a very special type of self defence case. Even if you assaulted another without any justification, or provoked an assault upon yourself by playing silly bugger out in public, you may still be justified in using of force IF
you become reasonably afraid that he is trying to kill you or totally bust you up;
you believe on reasonable grounds that a use of force is necessary to save yourself from the impending violence
you at no time tried to kill the other guy first, or bust him up seriously
"(c) (you) declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose."
If you start the fight, there can be no claim to self defence. If he subsequently tries to kill you, (perhaps by a mass attack by his friends or by producing a weapon,) if you are reasonably afraid of being killed or seriously hospitalised, and if you tried to retreat, self defence might be justified if you fight back only with reasonable force to preserve your life.
36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.
So, as you can see, ordinary self defence where you are the victim of abuse, threats and escalating physical force is not impacted in the least by this very narrow need to retreat law. On the other hand, it seems clear that if you start the fight with provocations and escalations of violence, you are not justified in using force to "defend" yourself if he fights back without any intent to kill you or hospitalise you. Such use of force is not self defence and is unjustified.