Article Volume 33:4

Defence of Others–Criminal Law and the Good Samaritan, The

Table of Contents

The Defence of Others – Criminal Law and the Good

Samaritan

Larry C. Wilson*

The consequences of acting as a good sa-
maritan, coming to the aid of a third person
in a moment of distress or peril, are often
such as would subject the good samaritan to
criminal liability. Both the common law and
statutory law have therefore developed var-
ious defences for the benefit of a good sa-
maritan charged with an offence in Canada.
Drawing extensively on the case law, the au-
thor develops current common law and sta-
tutory defences for coming to the aid of
another. In the author’s view, both sets of de-
fences are presently available to an accused,
the common law defences supplementing the
defences available under the Criminal Code.
However, because of the considerable differ-
ences in scope and content of the common
law and statutory defences, problems inev-
itably arise in the application of the defences
to a particular set of facts. This is especially
evident, the author points out, in the appli-
cation of the doctrine of mistake of fact,
where a good samaritan has been mistaken
as to the need to intervene or the amount of
force required to effectively assist the person
in peril. The author concludes with a survey
of suggested reforms, including the relevant
provisions of the Draft Criminal Code pre-
pared by the Law Reform Commission of
Canada, and with proposals to sanction crim-
inally the failure to render assistance or to
provide notification where another person is
in serious physical danger.

Les cons6quences de l’intervention du bon
samaritain –
qui consiste A venir en aide A
une personne en danger –
sont telles qu’elles
pourront souvent entraner sa responsabilit6
en droit penal. Le droit commun et la l6gis-
lation au Canada ont donc d6velopp6 divers
moyens de d6fence en faveur du bon sama-
ritain faisant face A des accusations. Suite A
une 6tude extensive de la jurisprudence sur
le sujet, l’auteur dicrit les dif’rents moyens
de dMfense en vigueur. Selon lui, les deux
types de moyens de d6fense peuvent pr6sen-
tement 6tre invoqu6s par le bon samaritain
faisant face A des accusations suite A son in-
tervention, les moyens de d6fense de droit
commun compl6tant ceux offerts par le Code
criminel. Toutefois, en raison de distinctions
importantes tant au point de vue du contenu
que de ]a port~e des moyens de dfense 16-
gaux et de ceux de droit commun, des diffi-
cult~s ne manquent pas de se pr6senter dans
certaines situations. Lauteur souligne que de
telles difficult~s sont particuli~rement 6vi-
dentes dans le cas d’une erreur de fait, alors
que le bon samaritain s’est m6pris quant au
besoin d’intervenir ou encore A la force n6-
cessaire pour venir en aide A la personne en
danger. Lauteur conclut par une pr6sentation
de divers projets de r6formes sur la question,
parmi lesquels le projet de Code criminel 6la-
bor& par la Commission de r~forme du droit
du Canada, ainsi que les propositions for-
mulces dans le but de punir le d6faut d’in-
tervenir afin de venir en aide A une personne
en p6ril ou d’aviser les autoit6s d’une telle
situation.

Professor, Faculty of Law, University of Windsor.

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GOOD SAMARITAN

Synopsis

Introduction

I.

The Common Law Bases for the Defence of Others

II. The Statutory Bases for the Defence of Others

III. Mistake of Fact and the Defence of Others

IV. Proposals for Reform

V.

Punishing the Bad Samaritan

Conclusion

Introduction

The purpose of this work is to examine the potential criminal respon-
sibility of the good samaritan. In Canada today there are both common law
and statutory bases for the “defence of others” or “defence of third persons”,
as it is sometimes called. The two major issues in the defence of others are
the question of availability, that is, who can raise the defence, and the
application of the doctrine of mistake of fact to the defence. These issues
are treated quite differently under the common law and statutory provisions.
Accordingly, the interaction between the common law and statute has caused
considerable confusion. This article will examin6 and illustrate the differ-
ences between the common law and statutory bases for the defence of others.
It then explores, through an analysis of case law, the attempt to synthesize
the competing approaches with particular reference to the problem of mis-
taken defence of another. Following an examination of various proposals
for reform, the imposition of a criminally sanctioned general duty to render
aid to those in need of assistance will be advocated.

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I. The Common Law Bases for the Defence of Others

Pursuant to subsection 7(3) of the Criminal Code,’ the common law
defences are available for the benefit of an accused charged with an offence
in Canada. This portion of the paper will examine the origins and evolution
of one such defence, the defence of others. The common law defence of
necessity, as a possible aid to the good samaritan, will also be examined.

The right to act in defence of another grew from the feudal obligation
of mutual aid and protection between lord and liege. Gradually mediaeval
law recognized a master’s privilege to defend members of the household,
including both family and servants, against personal attack.2 Similarly, serv-
ants were justified in coming to the defence of their master,3 and ultimately
the courts recognized that the privilege existed between members of the
same family.4 Some courts subsequently interpreted these decisions as pre-
cluding the defence of another beyond these specified relationships. For
example, in Leward v. Basely, when a wife intervened to protect her husband
from an alleged assault, the Court ruled that her action was justified “for

‘Sub-section 7(3) of the Criminal Code, R.S.C. 1970, c. C-34 reads as follows:

7.(3) Every rule and principle of the common law that renders any circumstance a
justification or excuse for an act or a defence to a charge continues in force and
applies in respect of proceedings for an offence under this Act or any other Act of
the Parliament of Canada, except in so far as they are altered by or are inconsistent
with this Act or any other Act of the Parliament of Canada.

2J. Fleming, The Law of Torts, 6th ed. (Sydney: Law Book, 1983) at 79. See Seaman v.
Cuppledick (c. 1610) Owen 150 cited in Fleming at 79 n. 26. For an excellent historical sketch
of the emergence and evolution of the concept of self-defence in criminal law, see B. Brown,
“Self-Defence in Homicide from Strict Liability to Complete Exculpation” [1958] Crim. L.
Rev. 583. At 586 the author notes that it was not until the 14th century that self defence was
firmly established as a justification but “aberrations continued, and it was not until 1532, when
a statute was passed for the express purpose of eliminating doubt as to the justifiable nature
of such acts that all ‘question and ambiguity’ disappeared.”

One of America’s foremost criminal law scholars, Rollin Perkins, has argued that the defence
of others need not be viewed as an extension of the law of self-defence. Rather, the privilege
of using force in defence of others, as a separate privilege, developed partly by accident and
had its roots in the law of property. See R. Perkins, Criminal Law, 2d ed. (Mineola, N.Y.:
Foundation Press, 1969) at 1018-19. See also R. Walston, “Justification for the Use of Force
in Criminal Law” (1961) 13 Stanford L. Rev. 566 at 573; American Jurisprudence, vol. 40, 2d
ed. (Rochester, N.Y.: Lawyers Co-operative Publishing, 1968) at 456ff., 170F.; The American
Law Institute, Model Penal Code, Tentative Draft No. 8 (Philadelphia: American Law Institute,
1958) at 31, s. 3.05; W. LaFave & A. Scott, Handbook on Criminal Law (St. Paul, Minn.: West
Publishing, 1972) at 397; W. Keeton, ed., Prosser and Keeton on Torts, 5th ed. (St. Paul, Minn.:
West Publishing, 1984) at 129-30; P. Robinson, Criminal Law Defences (St. Paul, Minn.: West
Publishing, 1984) at 88-89; American Law Institute, Restatement of the Law of Torts Second,
vol. I (St. Paul, Minn.: American Law Institute Publishers, 1965) at 131-32.
3Barfoot v. Reynolds (1734), 2 Stra. 953, cited in Fleming, ibid. at 79 n. 27.
4Leward v. Basely (1695), 1 Ld. Raym 62, 91 E.R. 937 [hereinafter cited to E.R.], cited in

Fleming, ibid. at 79 n. 28.

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GOOD SAMARITAN

the wife may lawfully make an assault, to keep her husband from harm
“5 Although periodically cited as authority for limiting the defence of
….
others, there is no clear language in the decision to suggest such intention.6

Glanville Williams has argued that morally and rationally the right to
use force should extend to the protection of strangers; he calls this the
“sensible view”. 7 The decision of Handcock v. Bakers provides a good ex-
ample. A group of men intervened to prevent a man from killing his wife.
Rooke J. recognized the right to act in defence of a total stranger and held
that the conduct of the men was justified. He added: “It is highly important
that bystanders should know when they are authorized to interfere.”9 This
appears to have been such a case because, according to the facts, “there was
reasonable cause to presume that the wife’s life could not have been other-
wise preserved than by immediately breaking open the door and entering
the said dwelling-house …

0. 1

In Goss v. Nicholas”, Crawford J. cited Clerk and Lindsell on Torts
and Street on Torts for the proposition that one may use greater force in

5Leward v. Basely, ibid. at 937.
6″The idea that the privilege is limited to the defence of relatives, servants, or at least close
associates, apparently was derived from some loose language in Leward v. Baseley …. “:
Prosser and Keeton on Torts, supra, note 2 at 130. See also the American Law Institute, Res-
tatement of the Law of Torts Second, Appendix, vol. 1, supra, note 2 at 90.
7G. Williams, Textbook ofCriminal Law, 2d ed. (London: Stevens & Sons, 1983) at 501. He
cites several authorities for the proposition that the right to defend others is not limited by
family relationships: Walter v. Jones (1634), 2 Rolle’s Abridgement 526 (C) 3; Tooley (1709),
88 E.R. 1015 (Q.B.); Prince (1875), 2 C.C.R. 178; Spartels, [1953] V.L.R. 194; People v. Keatley,
[1954] I.R. 12 (C.Cr.A.); Peoplev. Williams, 205 N.E.2d 749 (1965) (A.C.Ill.); Sir W.O. Russell,
Russell on Crime, vol. 1, 12th ed. by J.W. Cecil Turner (London: Stevens, 1964) at 680-81. In
their text, Criminal Law (London: Butterworths, 1965) at 235 [hereinafter Smith & Hogan,
Criminal Law], J.C. Smith and B. Hogan stated: “It would seem that, at the present day, no
special relationship need be shown. It will be noted that… Stephen justified a killing necessary
to defend himself ‘or any other person’; and Foster [Crown Law, 374] and Kenny [Outlines
(5th ed. 104)] too thought the defence should be generally available. This must surely be the
law.” The authors also cite East, 1 P.C. 290 which supports a stranger’s right to kill in order
to prevent a felony. See also J.C. Smith & B. Hogan, Criminal Law, 5th ed. (London: Butter-
worths, 1983) at 325-28 [hereinafter Smith & Hogan]; R. Heuston, ed., Salmond on the Law
of Torts, 17th ed. (London: Sweet & Maxwell, 1977) at 128.

In the United States nearly every jurisdiction now recognizes a justification for the defence
of other persons. However, some states continue to insist on the requirement of a family
relationship. See Robinson, supra, note 2 at 101.

sHandcock v. Baker (1800), 126 E.R. 1270.
9lbid. at 1273, Rooke J.
10lbid. at 1270.
“Goss v. Nicholas, [1960] T. St. R. 133 (Tas. S.C.).

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defence of a relative than in the defence of a stranger.’ 2 There is no clear
support for this position. The decision cited in the eleventh edition of Clerk
and Lindsell on Torts, Blades v. Higgs13, is certainly not such an authority.
In the more recent edition of the text,1 4 this discussion is omitted altogether
and replaced by reference to R. v. Duffy,15 the decision most frequently cited
as representing the current state of English common law on the defence of
others. The accused had gone to the aid of her sister who was embroiled in
a brawl with a man. In summing up, the trial judge instructed the jury that
self-defence was not available to the accused as the relationship of sisters
was not one to which a plea of self-defence extended. In the Court of Crim-
inal Appeal, Edmund Davies J. found, incorrectly, that there were no re-
ported cases which allowed the defence of another in cases other than those
involving master and servant, parent and child, or husband and wife. In
any event, the Court did not feel itself so limited:

Quite apart from any special relations between the person attacked and
his rescuer, there is a general liberty even as between strangers to prevent a
felony. That is not to say, of course, that a newcomer may lawfully join in a
fight just for the sake of fighting. Such conduct is wholly different in law from
that of a person who in circumstances of necessity intervenes with the sole
object of restoring the peace by rescuing a person being attacked.’ 6

Although frequently cited as authority for a general defence of third persons,
there is a strong argument that the decision in Duffy simply restates the
defence of prevention of crime rather than creating an extension to the law
of self-defence.1 7 The right to act in the prevention of crime has existed at

2Ibid. at 139, 143 respectively. Crawford J. held that the Handcock decision, supra, note 8,
was based on the right of a stranger to intervene to prevent a felony. At 136, in discussing the
case, he states: “There is nothing in the judgments to show that the right to interfere is extended
beyond the prevention of a felony ….
Support for this argument is found in the judgments
of Heath J. (at 1272) and Chambre J. (at 1273) in the Handcock decision itself.

Lindsell on Torts, 11th ed. (London: Sweet & Maxwell, 1954) at 217 n. (d).

13Blades v. Higgs (1861), 10 C.B. (N.S.) 713 cited in J. Burke & P Allsop, eds, Clerk &
14R.W.M. Dias, ed., Clerk and Lindsell on Torts, 15th ed. (London: Sweet & Maxwell, 1982)

at 295.

Duffy cited to Q.B.].

15R. v. Duffy, [1967] 1 Q.B. 63, [1966] 2 W.L.R. 299, [1966] 1 All E.R. 62 (C.C.A.) [hereinafter
161bid. at 67-68, Edmund Davies J.
7At 64 Edmund Davies J. stated: “The source of error in this case, as it appears to this
court is, as we have said, that everyone, including counsel at the trial and again before us,
seems to have overlooked that in reality and in law the case ofthe appellant was not trammelled
by any technical limitations on the application of the plea of self-defence, and this court is not
here concerned to consider what those limitations are.” (Emphasis added)

See Smith & Hogan, supra, note 7 at 327. See also B. Strachan, “The Art of Self Defence”
(1975) 119 Sol. J. 91. In Williams, Textbook of Criminal Law, supra, note 7 at 501, the author
states: “[J]udges have evaded the issue by saying that, whether or not one can defend a stranger,
one can prevent the commission of a crime against a stranger – which comes to much the
same thing.”

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GOOD SAMARITAN

least since the time of Blackstone and has long been the preferred approach
in England.’ 8 In addition, many of the early decisions relied on the right
of an individual to suppress riots or prevent a breach of the peace.’ 9 At
common law, an individual also has the power to arrest for an apprehended
breach of the peace. 20 This can prove interesting since the exact meaning
of “breach of the peace” has never been made clear.21

Although there is considerable confusion as to the basis on which in-
tervention may be undertaken, there is general agreement that, at common
law, a private person may intervene in defence of another, including total
strangers. Many of the early cases also dealt with the situation where there
was a mistake made regarding the need to intervene and the amount of
force required for intervention. For example, in R. v. Rose22 the accused
was charged with the murder of his father. Lopes J. instructed the jury that
the killing was justified only if “at the time he fired that shot he honestly
believed, and had reasonable grounds for the belief, that his mother’s life
was in imminent peril, and that the fatal shot which he fired was absolutely
necessary for the preservation of her life … .”23 One writer called this in-

18″Blackstone [Commentaries IV, 180] said that killing was justifiable to prevent the com-
mission of any ‘forcible or atrocious crime’.” Smith & Hogan, Criminal Law, supra, note 7 at
232. See also East, 1 P.C. 273 cited in Smith & Hogan at 232 n. 5.

19″According to East [1 P.C. 304], peace officers and their assistants, and according to Hawkins
[1 P.C., c. 10 14], private persons as well, are justified in intervening in a riot or riotous
assembly and ‘in proceeding to the last extremity in case the riot cannot otherwise be sup-
pressed’. This was so both under the common law and under the Riot Act 1714.” Smith &
Hogan, ibid. at 231.

In Timothy v. Simpson (1835), J Cr. M. & R. 757 at 762 Parke B. stated:

It is unquestionable that any by-stander may and ought to interfere to part those
who make an affray, and to stay those who are going to join in it until the affray
be ended. It is also clearly laid down that he may arrest the affrayers, and detain
them until the heat be over, and then deliver them to a constable.

20See Trebeck v. Croudace, [1918] 1 K.B. 158 (C.A.); Goss v. Nicholas, supra, note 11; R. v.
Howell, [1982] Q.B. 416, [1981] 3 W.L.R. 501, [1981] 3 All E.R. 383 (C.C.A.) [hereinafter cited
to Q.B.]; G. Williams, “Arrest for Breach of the Peace” [1954] Crim. L. Rev. 578.
21Williams, ibid. at 579 notes that while there is “a surprising lack of authoritative definition”
of the concept of “breach of the peace”, it is clear that a fight between two or more persons
is a breach of the peace. In Howell, ibid. at 427 Watkins L.J., for the Court, stated: “We are
emboldened to say that there is a breach of the peace whenever harm is actually done or is
likely to be done to a person or in his presence to his property or a person is in fear of being
so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” See
below, text accompanying notes 83-104.
22R. v. Rose (1884), 15 Cox C.C. 540.
23Ibid. at 541, Lopes J.

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struction a misdirection;24 another described this doctrine as “indefensibly
savage”, “preposterous and offensive”. 25

Despite these protestations, until recently the prevailing view held that
a bona fide belief based on unreasonable grounds will afford no defence.
This was the position taken in Duffy26 and the earlier decision of R. v,

24″[T]he case would at most be manslaughter. Happily, Rose was acquitted, and it would
probably be hard to find an instance of a person being convicted even of manslaughter where
he acted in the honest belief that circumstances of justification existed. Even if an apparent
instance were found, the case would probably need some study to decide whether the true
ground of conviction was not the jury’s incredulity that the alleged belief was entertained.”:
G. Williams, Criminal Law: The General Part, 2d ed. (London: Stevens & Sons, 1961) at 208
n.6. In his Textbook of Criminal Law, supra, note 7 at 504, Glanville Williams states: “The
requirement of reasonableness is unhappy.”
25Smith & Hogan, supra, note 7 at 330. The authors add: “If D intended to kill only because
he believed it was necessary to prevent the murder of his mother, his intention was to do what
the law permitted, and possibly required him to do. [A child may owe a duty to take reasonable
steps to protect his parent.] … . His fault, if any, was an unreasonable misjudgment of the
. If D is to be convicted of anything, it should be manslaughter because that is
situation…
an offence which may be committed by gross negligence.”

26Duffy, supra, note 15 at 64, Edmund Davies J.:

The necessity for intervening at all and the reasonableness or otherwise of the
manner of intervention were matters for the jury. It should have been left to them
to say whether, in view of the appellant’s proved conduct, such a defence could
possibly be true, they being directed that the intervener is permitted to do only
what is necessary and reasonable in all the circumstances for the purpose of rescue.”

See also Goss v. Nicholas, supra, note 11; Saler v. Klingbiel, [1945] S.A. St. R. 171 (S.C.); R.
v. Wheeler, [1967] 1 W.L.R. 1531 [1967] All E.R. 829 (C.A.).

There is, of course, a considerable difference between finding that conduct was, in fact,
necessary and finding that the accused reasonably believed it to be necessary. The language in
some of the decisions such as Duffy suggests adoption of the “alter ego” rule found in some
American decisions. Under the “alter ego” rule, the right of one person to defend another is
co-extensive with the right of the other to defend himself. In other words, the party who
intervenes in a struggle “stands in the shoes of the one defended.” Thompson v. State, 70 So.2d
282 at 284 (C.A. Ala. 1954), Price J. This rule precludes even the use of a reasonable mistake.
See People v. Young, 183 N.E.2d 318 (C.A. N.Y. 1962). The “alter ego” rule and its approach
to the question of mistake has been almost universally condemned. See J. Wilks, “Criminal
Culpability for Defence of Third Persons” (1963), 20 Wash. & Lee L. Rev. 98 at 103. The
author cites 1 Bishop on Criminal Law, 9th ed., 303: “What is absolute truth no man ordinarily
knows. All act from what appears, not from what is. If persons were to delay their steps until
made sure, beyond every possibility of mistake, that they were right, earthly affairs would cease
to move; and stagnation, death, and universal decay would follow. All therefore, must, and
constantly do, perform what else they would not, through mistake of facts.”

See also Note, “Criminal Law and Procedure – Mistake of Fact in Defence of Others”
(1962) 12 De Paul L. Rev. 155; Note, “Criminal Law – Assault – Mistaken Although Rea-
sonable Belief that Another is Being Assaulted is not a Defence to an Assault” (1962) 22
Maryland L. Rev. 359; G.M. Chaney, “Criminal Law – Assault and Battery – Defence of
Another Is Not Available as a Defence When Intervening and Assaulting Police Officers in Act
of Arrest” [1962] South Tex. L.J. 282; Note, “Criminal Law – Assault in Third Degree –
Intent – Good Faith Intervention” (1963) 27 Albany L. Rev. 123; Perkins, supra, note 2 at

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GOOD SAMARITAN

Chisam.27 In Chisam, the accused had complained about loud noise from
the radio of a group of passers-by, including three young men. They were
abusive to him, but moved away. When they were approximately eighty
yards away, Chisam got a rifle and fired two shots which hit members of
the party. The three men returned to the accused’s house and broke in.
During the ensuing melee, Chisam impaled the deceased, one Tait, on a
sword. His defence was that he was afraid he and the members of his family
might suffer serious injury. Interestingly, the Court did not choose to dif-
ferentiate his case on the basis that he had instigated the incident. Rather,
the Court rejected an appeal from conviction and sentence by the accused
on the ground that he had no real fear for his own safety or that of his
family. However, in reaching its decision the Court made it abundantly clear
that a simple honest belief in the need for defensive measures was not
sufficient to found a defence. Such belief had to be based on reasonable
grounds. 28

There has been intense debate in recent years about whether the Crim-
inal Law Act 196729 has altered or perhaps even eliminated the common
law of self-defence in England, a debate which may well foreshadow events
in Canada.30 Section 3 of the Act states:

3.(l) A person may use such force as is reasonable in the circumstances in the
prevention of crime, or in effecting or assisting in the lawful arrests of offenders
or of persons unlawfully at large.

1020-21; LaFave & Scott, supra, note 2 at 398-99.

In his text, Criminal Law: The General Part, supra, note 24 at 207, Glanville Williams has
attacked the “alter ego” rule: “A man should be judged according to his own intent, and not
according to the intent of another, even though that other is his brother. Nor is the fact that
the unhappy victim of the contest is without fault a sufficient reason for punishing one who
acted in good faith.”

27R. v. Chisam (1963), 47 Cr. App. R. 130 (C.C.A.).
28Ibid. at 135, Parker L.C.J. At 133 the Court adopted Lord Simonds, ed., Halsbury’s Laws
of England, vol. 10, 3d ed. (London: Butterworths, 1955) at 721, para. 1382 as a correct
statement of the law of England: “Where a forcible and violent felony is attempted upon the
person of another, the party assaulted, or his servant, or any other person present, is entitled
to repel force by force, and, if necessary, to kill the aggressor. There must be a reasonable
necessity for the killing, or at least an honest belief upon reasonable grounds that there is such
a necessity.”

In terms of the amount of force that can be used in defence of another, Lord Hailsham of
St. Marylebone, ed., Halsbury’s Laws ofEngland, vol. 11, 4th ed. (London: Butterworths, 1976)
at 630, para. 1179 states that the force used must be reasonable in the circumstances and further
that “[i]n determining whether the force used was reasonable the court will take into account
all the circumstances of the case, including the nature and degree of force used, the seriousness
of the evil to be prevented and the possibility of preventing it by other means.”See also R. v.
Fennell, [1971] 1 Q.B. 428, [1970] 3 W.L.R. 513, [1970] 3 All E.R. 215 (C.A.) [hereinafter cited
to Q.B.].

29(U.K.), 1967, c. 58.
30See below, text accompanying notes 184-200.

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(2) Subsection (1) above shall replace the rules of the common law on the
question when force used for a purpose mentioned in the subsection is justified
by that purpose.

Smith and Hogan argue that this provision has “clarified the common
law” and that where there is a conflict between section 3 and the common
law rules, section 3 will prevail.31 Under this approach the concept of mis-
take of fact may become unnecessary and the test will be simply whether
or not the force used was, in fact, reasonable. 32 Some writers have gone so

31Smith & Hogan, supra, note 7 at 326-27. At 326, the authors point out that their position
is based, to a large degree, on the similar nature of defence of others and the prevention of
crime:

The Criminal Law Act 1967 made no reference to the right of private defence –

the right to use force in defence of oneself or another against an unjustifiable attack.
The right of private defence still exists at common law; but if, and insofar as, it
differed in effect from s. 3 of the 1967 Act, it has probably been modified by that
section. Private defence and the prevention of crime are sometimes indistinguish-
able. If D goes to the defence of E whom P is trying to murder, he is exercising the
right of private defence but he is also seeking to prevent the commission of a crime.
It would be absurd to ask D whether he was acting in defence of E or to prevent
murder being committed and preposterous that the law should differ according to
his answer. He was doing both. The law cannot have two sets of criteria governing
the same situation and it is submitted that s. 3 of the Criminal Law Act is applicable.

32Halsbury’s Laws of England, 4th ed., supra, note 28 at 630, para. 1179:

At common law the rules relating to the use of force in such circumstances were
not altogether clear and appear to have varied according to the situation in which
the force was used. [No examples or authority are provided.] Under the present
law the same requirement, namely that the force used should be reasonable in the
circumstances, is applicable to all cases where force used in the prevention ofcrime
and the common law rules are to that extent superceded …

At 630, para. 1180:

A person acting in self-defence is normally acting to prevent the commission of a
crime, as is a person acting in defence of another. The test to be applied in such
cases is now established to be the same as for cases of prevention of crime, that is
the force used in self-defence or in defence of another must be reasonable in the
circumstances.

At the same time, the authors, at 630, para. 1179, actually manage to argue in favour of a
subjective test: “The ordinary rules relating to mistake of fact are applicable so that where the
force used is reasonable having regard to the facts as the defendant supposed them to have
been, the defendant commits no offence although the force used is excessive having regard to
the facts as they were.” Contrast this approach with the following comment from R. Cross &
PA. Jones, Introduction to Criminal Law, 10th ed. by R. Card (London: Butterworths, 1984)
at 440: “Related to the question of mistake is the situation where it is necessary for the accused
(or he reasonably believes it is) to use force to prevent crime, or to effect an arrest, or to defend
himself, another or property but he uses an excessive degree of force (ie force which is unrea-
sonable in the circumstances) in order to do so. In such a case, he has no defence.” The
reasonable mistake of fact defence in regard to the need to intervene seems somewhat pointless
if the extent of force used must in fact be reasonable. It is difficult to imagine a situation where
your use of force would not be viewed as excessive given the fact that there was in reality no
need for the use of any force at all.

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GOOD SAMARITAN

far as to suggest that the case law prior to the enactment of the legislation
has become largely irrelevant. 33 Others take strong exception and find it
“unthinkable that Parliament should inadvertently have swept aside the
ancient privilege of self-defence.”‘ 34 Carol Harlow, one of the strongest pro-
ponents of the need to retain the common law option, presents an interesting
problem for consideration:

Although public and private defence normally overlap, this is not an invariable
rule. In Morriss v. Marsden an assault was committed by a dangerous psy-
chopath later found unfit to plead. If, on these facts, P were to defend himself
against the assault, it is problematic as to whether section 3 would be available
to him. If an objective test is used to decide whether he was “preventing a
crime” then the answer must be negative, and P’s right to defend himself has
unbelievably disappeared. If D’s defence depends on his own honest belief in
the existence of a crime then section 3 is still available. If, however, he knows
D to be a psychopath, then he has no honest belief, and his defence again
disappears.

35

33S. Mitchell & P.J. Richardson, ed., Archbold Criminal Pleading Evidence and Practice, 42d

ed. (London: Sweet & Maxwell, 1982) at 1615, para. 20-24:

There are a number of authorities on the right to use such force as is reasonably
necessary to defend relatives or dependants, and to prevent a felony … . It is
submitted that it is unnecessary to refer to such authorities in view of the provisions
of section 3 of the Criminal Law Act 1967 … . An assault is a crime, anyone going
to the rescue of someone being assaulted, be it a relative or a stranger, is using force
in the prevention of crime, and if he uses such force as is reasonable in the cir-
cumstances he is acting lawfully.

It is submitted that the same considerations apply to such a situation as to the
issue of self-defence, and that the authorities prior to the enactment of the Criminal
Law Act 1967 are now only of historical interest.

3C. Harlow, “Self-Defence: Public Right or Private Privilege” [1974 Crim. L. Rev. 528 at

537.

35Ibid. at 531. The author notes that for the defence of “preventing a crime” it can be argued
that there was a crime, but a bar existed to the prosecution of the criminal. Harlow also
recognizes that under the common law the mistaken belief must probably be a reasonable one.
Support for Harlow’s position can be found in Clerk and Lindsell on Torts, supra, note 14
at 295; G. Williams, Textbook of Criminal Law (London: Stevens & Sons, 1978) at 455 n. 19;
Cross & Jones, supra, note 32 at 437. Smith & Hogan, supra, note 7 at 328 provide the following
response:

In a very few cases the attacker may not be committing a crime because, for
example, he is a child under ten, insane, in a state of automatism or under a material
mistake of fact. If D is unaware of the circumstances which exempt the attacker,
then s. 3 of the Criminal Law Act will still, indirectly, afford him a defence to any
criminal charge which may be brought, provided he is acting reasonably in the light
of the circumstances as they reasonably appear to him; for he intends to use force
in the prevention of crime, as that section allows, and therefore has no mens rea.
Where D does know of the circumstances in question, then s. 3 is entirely inap-
plicable, but it is submitted that the question should be decided on similar principles.
A person should be allowed to use reasonable force in defending himself or another
against an unjustifiable attack, even if the attacker is not criminally responsible.

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[Vol. 33

Surely the most sensible approach would allow section 3 and private
defence, including defence of others, to co-exist. In the event of conflict,
the statutory provisions would prevail. Cross and Jones state that while a
person acting in defence of himself or another is invariably engaged in the
prevention of crime, section 3 has not been directly applied in cases of self-
defence since the Act of 1967 came into force. 36 The authors also note that
in R. v. Cousins,37 “the Court of Appeal was clearly of the opinion that a
person who used force to repel an attack could avail himself of the common
law defence of self-defence and of the defence under s3 (1) of preventing
the commission of the crime which such an attack would have involved,
provided in both cases that the force used was reasonable in the circum-
stances. In such a case then (and presumably in the case of defence of others
and defence of property), the common law defence survives alongside the
statutory one.”‘ 38

Although the test for mistake of fact was generally described as an
objective test some courts continued to direct juries to consider what the
accused himself thought. This fusion of objective and subjective elements
has been described as a “somewhat illogical concept”. 39 Proposed reforms
in England did little to alleviate the confusion since they also combined
subjective and objective tests:

In its Fourteenth Report: Offences against the Person, published in 1980,
the Criminal Law Revision Committee has recommended that the common
law relating to self-defence, defence of another or defence of property should
be replaced by a statutory definition. This would set out the principle that a
person may use such force as is reasonable in the circumstances as he believes
them to be in the defence of himself or another, or in defence of his or another’s

36Cross & Jones, supra, note 32 at 437.
37R. v. Cousins, [1982] Q.B. 526, [1982] 2 W.L.R. 621, [1982] Crim. L. Rev. 444.
38Cross & Jones, supra, note 32 at 437.
39Archbold Criminal Pleading Evidence and Practice, supra, note 33 at 1614, para. 20-21.
The decision ofR. v. Shannon (1980), 71 Cr. App. R. 192 (C.A.) is cited. Cross & Jones, ibid.
at 440 offered the following summary:

If evidence is adduced of reasonable grounds for the belief [that intervention is
required] and is not disproved, he is judged on the facts as he mistakenly believed
them to be (ie he must be acquitted of the offence charged unless the prosecution
prove that the force used was not reasonable in the circumstances as he reasonably
believed them to be). On the other hand, if evidence of reasonable grounds for the
belief is not adduced (or if it is not disproved), his mistake affords him no defence.

It should be noted that in England, where death results from the excessive use of force in
the prevention of crime, self-defence or defence of another, and the accused intended to kill
or do grievous bodily harm (the mens rea for murder), the offence will not be reduced to
manslaughter. In Palmer v. R., [1971] A.C. 814 at 832, [1971] 2 W.L.R. 831, [1971] 1 All E.R.
1077 (PC.), Lord Morris stated for the Court: “The defence of self-defence either succeeds so
as to result in an acquittal or is disproved in which case as a defence it is rejected.” See also
Cross & Jones, ibid. at 441.

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GOOD SAMARITAN

property. The defence would be confined to cases where the accused feared an
imminent attack on himself or another, or on property.

These provisions would be separate from s3 of the CriminalLaw Act 1967,
which, it recommended, should be amended so that, as regards criminal pro-
ceedings only, there should be (as in the proposal concerning self-defence) a
subjective test as to whether the accused believed that force was necessary in
the prevention of crime or in effecting or assisting in a lawful arrest; although
whether the force used was reasonable should continue to be governed by an
objective test.

In relation to the use of excessive force in self-defence or the like by a
person charged with murder, the Committee has recommended that, where an
accused kills in circumstances where it is reasonable for some force to be used
in defence of himself or another, or of property, or in the prevention of crime,
he should be liable to be convicted of manslaughter, and not murder if (at the
time of the act) he honestly believed that the force was reasonable in the
circumstances. 40

Recent decisions in England suggest a strong movement toward sub-
jective evaluation. The best known of these cases is that of Gladstone Wil-
liams.4 1 A man named Mason saw a youth seize a woman’s handbag. He
caught the youth and was struggling with him when Williams appeared on
the scene. When Mason could not satisfy Williams that he was performing
a lawful arrest, Williams and Mason began to struggle. Mason suffered in-
juries to his face as a result of which Williams found himself charged with
and convicted of assault occasioning actual bodily harm. Williams had ar-
gued that he honestly believed Mason was unlawfully assaulting the youth.
The trial judge directed the jury that if they found that Mason’s actions
were lawful, Williams could rely on his mistaken belief that they were un-
lawful if that belief was based on reasonable grounds. Williams successfully
appealed to the Court of Appeal on the ground of misdirection. The Lord
Chief Justice held that the prosecution had the burden of proving the un-
lawfulness of the appellants actions, that is, it was for the prosecution to
eliminate the possibility that the appellant was acting under a genuine mis-
take of fact. The appellant was to be judged according to his mistaken view
of the facts, whether or not that mistake was, on an objective view, reason-
able. The reasonableness of the appellants belief was material to the question
whether the belief was in fact held. If the belief was held, its reasonableness
was irrelevant on the question of guilt or innocence. 42

4Cross & Jones, ibid. at 442.
41R. v. Williams (1984), 78 Cr. App. R. 276, [1984] Crim. L. Rev. 163 (C.A.) [hereinafter
Gladstone Williams cited to Cr. App. R.]. See also R. v. Jackson (1983), [1984] Crim. L. Rev.
674 (C.A.); R. v. Bird, [1985] Crim. L. Rev. 388 (C.A.); R. v. Asbury (1985), [1986] Crim. L.
Rev. 258 (C.A.); R. v. Fisher (1986), [1987] Crim. L. Rev. 334 (C.A.).

42Gladstone Williams, ibid. at 279-81, Lord Lane C.J.

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[Vol. 33

Professor J.C. Smith describes Gladstone Williams as an important
decision because it appears to overrule a long line of dicta asserting that a
mistake of fact cannot found a defence of self-defence unless it is based on
reasonable grounds. However, he is also quick to recognize the limits of the
decision: “It is concerned only with mistakes of fact. The defendant is to
be judged on the facts as he believed them to be. The question whether, in
the circumstances which the defendant believed to exist, it was justifiable
to use the degree of force in fact used, or to use any force, still depends on
whether it was reasonable to do so.”‘ 43 In other words, in a situation where
the belief in the need to intervene and the belief in the amount of force
required for such intervention are both honestly held, the defence of mistake
will not be available in regard to the latter belief if it is found to be unrea-
sonable. Apart from the seemingly endless debate on the pros and cons of
objective and subjective tests and simply in terms of providing an intelligible
direction to a jury the use of one test or the other would be preferable. 44

43J.C. Smith, Commentary: R. v. Williams (Gladstone) [1984] Crim. L. Rev. 163. At 164 the
author offers the recommendation of U.K., Criminal Law Revision Committee, “Fourteenth
Report (Offences Against the Person)”, Cmnd 7844 (1980), para. 238:

The defendant should be judged on the facts as he believed them to be but subject
to that it should be for the jury or magistrates to decide whether in their opinion
the defendant’s reaction to the threat, actual or imagined, was a reasonable one.

Smith also adds: “Judges will no doubt remind juries that, in deciding whether a reaction was
a reasonable one, the circumstances must be borne in mind ….”

44In Commentary: R. v. Bird [1985] Crim. L. Rev. 389 at 390, Professor Smith notes that
in regard to the force used, the test is reasonable mistake rather than a simple factual evaluation
as to whether or not the force was indeed necessary: “It seems clearly right and in accordance
with the general principle underlying the statement of the law in Gladstone Williams that the
test of reasonableness should be applied to the force that the defendant was aware that he was
using rather than (in the rare case where there is a difference) the force actually used.”In
Commentary: R. v. Asbury [1986] Crim. L. Rev. 259 at 259-60, Professor Smith suggests that
the debate over subjective and objective tests is far from over.

The remarks in question in Gladstone Williams have been generally treated by
academic writers (who regard them with approval, perhaps coupled with surprise)
as ratio decidendi; but the present court clearly thought they were obiter as, indeed,
does one member of the court in Williams. In that case the court held that there
had been a material misdirection on the burden of proof: “It was something at the
very foundation of the case and that on its own would have been enough to require
this Court to allow the appeal and quash the conviction.” … [T]hey went on to
. A case
consider the question of the reasonableness of the defendant’s belief …
may have more than one ratio decidendi … . That seems to be clearly applicable
to Gladstone Williams…

It is true that Chisam and Fennell were not discussed in Gladstone Williams but
that was because the court held that it was not necessary for them to consider “the
large volume of historical precedent with which [counsel for the the Crown] threat-
ened us.” That large body of authority had been rendered irrelevant by the decision
of the House of Lords in Morgan [(1975), 61 Cr. App. 136].

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GOOD SAMARITAN

Use of the common law defence of necessity as a basis for authorization
to act in defence of others also creates certain difficulties. Glanville Williams
has stated that the use of defensive force can be regarded as an instance of
necessity. Although it is sometimes thought that the difference between self-
defence and necessity is that the former presupposes a wrong while the latter
does not, Williams concludes that “the line is pretty thin and there is hardly
any legal need to draw it. Self-defence can be regarded as a part of necessity
that has attained relatively fixed rules.”’45

However, recent decisions of the Supreme Court of Canada, and in
particular Perka v. R., 46 demonstrate an apparent intention to restrict se-
verely the potential application of the necessity defence. In a detailed anal-
ysis of the decision, Professor Colvin notes that although necessity is now
clearly recognized in Canada as a common law defence the Court has im-
posed several limiting conditions.47 There must be a situation of clear and
imminent peril such that “normal human instincts cry out for action and
make a counsel of patience unreasonable”; there must be no “reasonable
legal alternative to disobeying the law” and “the harm inflicted must be less
than the harm sought to be avoided. ‘ 48 Although each of these limitations
could have important potential application to a situation involving the de-
fence of others, perhaps more important for present purposes was the Court’s
holding that necessity is an excuse rather than a justification.49 As Colvin

S.C.R.].

45Williams, Criminal Law: The General Part, supra, note 24 at 733. The author states: “On
this view, defence against a savage dog, or against a plague of locusts or the onrush of flood-
water, is not self-defence but necessity.”
46Perka v. R., [1984] 2 S.C.R. 232, 13 D.L.R. (4th) 1, 42 C.R. (3d) 113 [hereinafter cited to
47E. Colvin, Principles of Criminal Law (Toronto: Carswell, 1986) at 195-205. See also D.
Stuart, Annotation: Perka v. R. (1984) 42 C.R. (3d) 115; D. Galloway, “Necessity as a Justi-
fication: A Critique of Perka” (1986) 10 Dalhousie L.J. 158.
48Perka, supra, note 46 at 250-53 and 259, Dickson J.. Colvin, ibid. at 202 adds: “The fourth
limitation which Perka established for the necessity defence is that it is not available where
the peril should clearly have been foreseen and avoided at an earlier time.”

49Perka, ibid. at 259, Dickson J.. At 246-47 Dickson J. explains the distinction:

Criminal theory recognizes a distinction between “justification” and “excuses”.
A “justification” challenges the wrongfulness of an action which technically con-
stitutes a crime. The police officer who shoots the hostage-taker, the innocent object
of an assault who uses force to defend himself against his assailant, the Good
Samaritan who commandeers a car and breaks the speed laws to rush an accident
victim to the hospital, these are all actors whose actions we consider rightful, not
wrongful. For such actions people are often praised, as motivated by some great or
noble object. The concept of punishment often seems incompatible with the social
approach bestowed on the doer.

In contrast, an “excuse” concedes the wrongfulness of the action but asserts that
the circumstances under which it was done are such that it ought not to be attributed
to the actor. The perpetrator who is incapable, owing to a disease of the mind, of
appreciating the nature and consequences of his acts, the person who labours under

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[Vol. 33

points out, there was no discussion of mistakes in Perka. He adds: “The
general principle for justifying defences is that a mistake must be reasonable.
There is, however, no equivalent principle for excusing defences. Moreover,
the analogy of duress suggests that these defences may be grounded upon
mistakes of fact whether or not they are reasonable. ’50 It is not surprising
that many authorities continue to call for an end to what they view as the
troublesome and unnecessary distinction between justifications and ex-
cuses.51 It is also interesting to note that in the proposed new Code, defences
are not rigidly separated into justifications and excuses. 52

II. The Statutory Bases for the Defence of Others

In his foreword to Digest of the Criminal Law of Canada by G.W.
Burbidge, the Honourable Mr Justice Fred Kaufman has summarized early
attempts to provide a comprehensive statement on Canada’s criminal law
prior to the enactment of our first Criminal Code in 1892. 53 Samuel Ro-
binson Clarke laid the foundation for this process with his Treatise on Crim-
inal Law54 in 1872. Two years later, Mr Justice H.E. Taschereau published
the first edition of his Criminal Law Consolidation and Amendment Acts. 55

a mistake of fact, the drunkard, the sleepwalker: these are all actors of whose “crim-
inal” actions we disapprove intensely, but whom, in appropriate circumstances, our
law will not punish.

On the other hand, Wilson J., at 268-79, although accepting the distinction between justification
and excuse, prefers the view that an act of necessity is sometimes justified and sometimes
excused. She would characterize necessity as a justification in cases where an actor is faced
with conflicting legal duties and breaks one law in pursuit of the higher duty. At 276 she states
that

on the existing state of the law the defence of necessity as justification would not
be available to the person who rescues a stranger since the absence of a legal duty
to rescue strangers reduces such a case to a conflict of a legal with a purely ethical
duty. Such an act of rescue may be one deserving of no punishment and, indeed,
deserving of praise, but it is nevertheless a culpable act if the law is violated in the
process of the rescue.

50Colvin, supra, note 47 at 199.
5 Foran excellent discussion ofthis debate, see D. Stuart, Canadian Criminal Law:A Treatise,
2d ed. (Toronto: Carswell, 1987) at 388-91; Annotation: Perka v. R., supra, note 47; Galloway,
supra, note 47; Colvin, ibid., at 166-69 and the authorities cited therein.

52Law Reform Commission of Canada, Recodifying Criminal Law (Report No. 30), vol. 1
(Ottawa: Law Reform Commission of Canada, 1986) at 39. See also Law Reform Commission
of Canada, Criminal Law: The General Part – Liability and Defences (Working Paper No.
29) (Ottawa: Supply and Services Canada, 1982) at 91-97.
53″Foreword” in G.W. Burbidge, Digest of the Criminal Law of Canada (Toronto: Carswell,
54A Treatise on CriminalLaw asApplicableto the Dominion of Canada (Toronto: R. Carswell,
55H.-E. Taschereau, The Criminal Law Consolidation and Amendment Acts of 1869, 2 vols

1980), originally published in 1890.

1872).

(Montreal: Lovell, 1874).

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GOOD SAMARITAN

This was followed by Dandurand and Lanct6t’s Trait6 thorique et pratique
de droit crimine156 and the work of Burbidge. 57

Burbidge drew heavily on Stephen’s Digest of the Criminal Law58 of
England in creating his own digest which was “intended to be a statement
of that part of the Criminal Law of Canada which relates to the definition
of crimes and of punishments prescribed therefor, as it stood on September
1st, 1889.”159 In a chapter entitled “Cases In Which Infliction of Bodily Injury
is Not Criminal”, in addition to articles dealing with the suppression of
riots and prevention of the commission of crime, Burbidge’s Digest contains
an article entitled “Private Defence”. This article, which like the others
noted above is taken directly from Stephen’s work, states that “the inten-
tional infliction of death or bodily harm is not a crime when it is inflicted
by any person in order to defend himself or any other person from unlawful
violence.” ’60

56R. Dandurand & C. Lanct6t, Trait th orique et pratique de droit criminel (Montreal: A.

P6riard, 1890).

57For a detailed examination of the evolution of Canadian criminal law prior to codification,
see J.C. Martin, The Criminal Code of Canada (Toronto: Cartwright & Sons, 1955) at 1-15.
At 2 the author notes that “while it is true that the English Draft Code of 1878 is the specific
basis of the Canadian Code, much of the substance of both was to be found in Peel’s Acts
[1826-1828] and in the [United Kingdom] Acts of 1861.” See also M. Friedland, A Century of
Criminal Justice: Perspectives on the Development of Canadian Law (Toronto: Carswell, 1984).

58J.E Stephen, A Digest of the Criminal Law, 3d ed. (London:. MacMillan & Co., 1883).
59″Preface” in Burbidge, supra, note 53.
60Burbidge, supra, note 53, art. 256 (Private Defence, Stephen’s Digest, supra, note 58, art.

200) reads as follows:

The intentional infliction of death or bodily harm is not a crime when it is inflicted
by any person in order to defend himself or any other person from unlawful violence,
provided that the person inflicting it observes the following rules as to avoiding its
infliction and inflicts no greater injury in any case than he in good faith, and on
reasonable grounds, believes to be necessary when he inflicts it: –
(a.) If a person is assaulted in such a manner as to put him in immediate and
obvious danger of instant death or grievous bodily harm, he may defend himself
on the spot, and may kill or wound the person by whom he is assaulted;
(b.) If a person is unlawfully assaulted,

(i.) in his own house;
(ii.) in the execution of a duty imposed upon him by law;
(iii.) by way of resistance to the exercise of force which he has by law a right
to employ against the person of another,

he may defend himself on the spot, and may use a degree of force for that purpose
proportioned to the violence of the assault, and sufficient (in case iii.) to enable
him not only to repel the attack made upon him, but to effect his original purpose;
but a person using force in the execution of a duty imposed upon him by law, or
in order to effect a purpose which he may by law effect in that manner, and not
being assaulted, is not entitled to strike or hurt the person against whom he employs
such force, merely because he is unable otherwise to execute such duty or fulfil such

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[Vol. 33

After publication of his Digest, Stephen received permission from Earl
Cairns, then Lord Chancellor, to draft a Criminal Code. The Code was
drafted and introduced as a bill into the English Parliament in the session
of 1878. A Commission consisting of Stephen, Lord Blackburn, Mr Justice
Barry and Lord Justice Lush was appointed to report upon this Draft Code.
Their report was issued in 1879, containing by way of appendix the Draft
Code as revised by the Commissioners.61 This Draft Code, which formed
the basis of our original Code, did not receive approval from the English
Parliament. The chief opponent of the Draft Code was Chief Justice Sir
Alexander Cockburn who argued that codification would put the law in a
strait jacket, losing in the process the elasticity of the common law. 62

The Draft Code of 1879 contained several deviations from Stephen’s
Digest including a substantial revision of the concept of private defence
which Burbidge considered to be the law of Canada as late as 1889. The
Draft Code, unlike the Digest, did not contain the phrase “in order to defend
himself or any other person from unlawful violence” but instead spoke of
“using force in defence of his own person or that of any one under his
protection ….63 This change in language from the earlier work of Stephen

purpose, except in the cases provided for in Article 255.

(c.) If a person is unlawfully assaulted by another [without any fault of his own,
and otherwise than in the cases provided for in clauses (a.) and (b.), but with a
deadly weapon, it is his duty to abstain from the intentional infliction of death or
grievous bodily harm on the person assaulting, until he (the person assaulted) has
retreated as far as he can with safety to himself.

But any person unlawfully assaulted may defend himself on the spot by any force
short of the intentional infliction of death or grievous bodily harm, and if the assault
upon him is notwithstanding continued, he is in the position of a person assaulted
in the employment of lawful force against the person of another.

(d.) If two persons quarrel and fight neither is regarded as defending himself
against the other until he has in good faith fled from the fight as far as he can, but
if either party does in good faith flee from the fight as far as he can, and if, when
he is prevented, either by a natural obstacle or any other cause of the same nature,
from flying farther, the other party to the fight follows and again assaults him, the
person who has so fled may defend himself, and may use a degree of violence for
that purpose proportioned to the violence employed against him.

61″Preface” in Stephen, supra, note 58.
62Martin, supra, note 57 at 2.
63U.K., H.C., “Report of the Royal Commission Appointed to Consider the Law Relating
to Indictable Offences: With an Appendix Containing a Draft Code embodying the Suggestions
of the Commissioners” (1879) [hereinafter the Draft Code].

The self-defence provisions of the Draft Code read as follows:

Section 55.

Self-Defence Against Unprovoked Assault

Every one unlawfully assaulted, not having provoked such assault, is justified in
repelling force by force, if the force he uses is not meant to cause death or grievous
bodily harm, and is no more than is necessary for the purpose of self-defence; and

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GOOD SAMARITAN

does not appear to be the result of any intentional change of direction or
philosophy by the Commissioners. Rather, several alterations were made
in the interest of clarity64 and the end product was, for the most part, a
restatement of existing principles of common law. 65 The change from “any
other person” to “any one under his protection” was, at the time, probably
not viewed as significant because in the late 1800s the right to defend another

every one so assaulted is justified though he causes death or grievous bodily harm,
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 purpose and if he believes on reasonable grounds that he cannot
otherwise preserve himself from death or grievous bodily harm.

Section 56.

Self-Defence Against Provoked Assault

Every one who has without justification assaulted another, or has provoked an
assault from that other, may nevertheless justify force subsequent to such assault,
if he uses such force under reasonable apprehension of death or grievous bodily
harm from the violence of the party first assaulted or provoked, and in the belief
on reasonable grounds that it is necessary for his own preservation from death or
grievous bodily harm: Provided that he did not commence the assault with intent
to kill or do grievous bodily harm, and did not endeavour at any time before the
necessity for preserving himself arose, to kill or do grievous bodily harm: Provided
also, that before such necessity arose he declined further conffict, and quitted or
retreated from it as far as was practicable.

Provocation within the meaning of this and the last preceding section may be

given by blows words or gestures.

Section 57.

Prevention of Insult

Every one is justified in using force in defence of his own person or that of any
one under his protection from an assault accompanied with insult: Provided that
he uses no more force than is necessary to prevent such assault, or the repetition
of it: Provided also, that this section shall not justify the wilful infliction of any
hurt or mischief disproportionate to the insult which it was intended to prevent.

The Draft Code also contained provisions dealing with the suppression of breaches of the

peace, suppression of riots and the authority to prevent the commission of certain offences.

64Ibid. at 13-14:

The Draft is founded on the Bill throughout, but the language of the Bill is altered
in nearly every section; considerable parts of it are altogether redrawn, and in some
parts of the Draft Code a different arrangement has been adopted. In a large pro-
portion of cases the differences between the two are differences of style, the matter
expressed being substantially the same. Many alterations made were in the direction
of expanding the provisions of the Bill, which, with a view to brevity, were framed
in more general terms than was ultimately thought desirable. Single sections were
thus in many instances divided into two or more, and the language was frequently
elaborated in order to prevent possible misconceptions of the meaning.

65Ibid. at 11, 18:

We take one great principle of the common law to be, that though it sanctions the
defence of a man’s person, liberty, and property against illegal violence, and permits
the use of force to prevent crimes, to preserve the public peace, and to bring offenders
to justice, yet all this is subject to the restriction that the force used is necessary;

McGILL LAW JOURNAL

[Vol. 33

may well have been limited to rendering assistance to persons under one’s
protection such as family members and employees. 66

Before enactment, Canada’s first Criminal Code was examined and re-
vised by legal experts selected from and forming a Joint Committee of both
Houses of Parliament; it was also considered in each House by a Committee
of the whole. 67 An Act Respecting the Criminal Law was given Royal assent
on 9 July 1892 and came into force on 1 July 1893.68 This Code, which was
drafted by Mr Justice Burbidge, the former Deputy Minister of Justice, and
Mr Sedgewick, then Deputy Minister of Justice, was taken, in large part,
from the revised Draft Code rejected by the English Parliament.69 In par-
ticular, the provisions dealing with self-defence were taken verbatim from
the work of the Royal Commission. These provisions, which have not been
substantially altered since first enacted, 70 received very little attention during
the debates of the House of Commons. Most of the discussion focused on

that is, that the mischief sought to be prevented could not be prevented by less
violent means; and that the mischief done by, or which might reasonably be antic-
ipated from the force used is not disproportioned to the injury or mischief which
it is intended to prevent ….

Sections 25 to 66, both inclusive, contain a series of provisions as to the circum-
stances which justify the application of force to the person of another against his
will … . We believe that in the main these provisions embody the common law,
though on some points they lay down a definite rule where the law is at present
doubtful, and in others correct what appear to be defects in the existing law.

Curiously, s. 57 of the Draft Code carries a marginal note which states: “This perhaps extends
the law, but it appears reasonable” without further elaboration. The Criminal Code, S.C. 1953-
54, c. 51, s. 37 omitted the words “accompanied with insult” found in section 57 of the Draft
Code of 1879 and subsequent versions of Canada’s Criminal Code: see the Criminal Code,
S.C. 1892, c. 29, s. 47; R.S.C. 1906, c. 146, s. 55; R.S.C. 1927, c. 36, s. 55. For a comment on
this change, see Martin, supra, note 57 at 114.

66Martin, supra, note 57 at 111 cites the following comment from 1 Hawk P.C. c. 28, para.
23: “Also there are some actual assaults on the person which do not amount to a forfeiture of
such a recognizance (viz., of surety of the peace) … if a man beat, or as some say, wound or
maim one who makes an assault upon his person, or that of his wife, parent, child or master,
especially if it appears that he did all he could to avoid fighting before he gave the wound.”
See above, text accompanying notes 2-21.
67″Introduction” in J. Crankshaw, The Criminal Code of Canada and the Canada Evidence

Act, 3d ed. (Toronto: Carswell, 1910) at xxxvii.

6SCrankshaws Criminal Code, 8th ed. (Toronto: Carswell, 1979) at 1-1, 1-2.
691bid. at 1-1. See also H.E. Taschereau, The Criminal Code of the Dominion of Canada
(Toronto: Carswell, 1893), reprinted as The Criminal Code of Canada (Toronto: Carswell, 1980).
70See Criminal Code, S.C. 1892, c. 29, ss 45-47; R.S.C. 1906, c. 146, ss 53-55; R.S.C. 1927,
c. 36, ss 53-55; R.S. 1953-54, c. 51, ss 27, 30, 32; R.S.C. 1970, c. C-34, ss 34, 35, 37. These
Codes also contained provisions dealing with the suppression of breaches of the peace, suppres-
sion of riots and the authority to prevent the commission of certain offences. See Criminal
Code, S.C. 1892, c. 29, ss 38, 42, 44; R.S. 1906, c. 146, ss 46, 50, 52; R.S. 1927, c. 36, ss 46,
50, 52; R.S. 1953-54, c. 55, ss 27, 30, 32; R.S.C. 1970, c. C-34, ss 27, 30, 32.

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GOOD SAMARITAN

the concept of “codification” itself, discontinuing the use of the word “mal-
ice” and the role of the grand jury in criminal proceedings. 71

In Canada today, there is no statutory provision which specifically au-
thorizes the defence of strangers. There are, however, a number of sections
in the Criminal Code which may serve the same purpose. Relevant statutory
provisions provide for arrest in certain circumstances, 72 prevention of riots73
and breaches of the peace, 74 and the prevention of crime.75 One section of
the Code allows one to protect a person “under his protection”. 76

A private citizen can arrest anyone he “finds committing an indictable
offence”. 77 The Code provision would allow an individual to act in defence
of others in most situations since the various types of assault are all in-
dictable offences. 78 However, the requirement that the intervenor arrest only
when he “finds” someone committing an indictable offence could create
difficulties in cases of mistake. If a private citizen undertakes an arrest
without a warrant, he takes the risk that if the person arrested is innocent
and the arrest therefore unlawful, he will be held liable for damages for false
imprisonment. However, several decisions, including Roberge v. .R.,79 a re-
cent decision of the Supreme Court of Canada, have used section 25 of the
Criminal Code in holding that a person may be justified in making an arrest,
and therefore be immune from civil or criminal liability, where an offence
is “apparently committed”. 80 Thus, although still subject to considerable
debate, it can be argued that where a private citizen intervenes under a
reasonable but mistaken belief that the person he is seeking to protect is
being subjected to the commission of an indictable offence, the reasonable
mistake of fact will provide an effective defence. 8’

71See Canada, Debates of the House of Commons, vol. 34 at 1312-20 (12 April 1892), and

vol. 35 at 2789-90 (18 May 1892).

72Criminal Code, supra, note 1, s. 449.
73Criminal Code, ibid., s. 32.
74Criminal Code, ibid., ss 30-31.
75Criminal Code, ibid., s. 27.
76Criminal Code, ibid., s. 37.
77Criminal Code, ibid., s. 449.
78See Criminal Code, ibid., ss 244-246.3. Although several of the assault provisions in the
Code are “hybrid offences”, pursuant to para. 27(1)(a) of the Interpretation Act, R.S.C. 1970,
c. 1-23, they may be treated as indictable offences.

79[1983] 1 S.C.R. 312, 147 D.L.R. (3d) 493, 4 C.C.C. (3d) 304 [hereinafter cited to S.C.R.].
80Criminal Code, supra, note 1, sub-s. 25(1). See also Law Reform Commission of Canada,

Arrest (Working Paper No. 41) (Ottawa: Supply and Services Canada, 1985) at 46.

81See R.E. Salhaney, Canadian Criminal Procedure, 4th ed. (Toronto: Canada Law Book,
1984) at 44-46; E. Ewaschuk, Criminal Pleadings and Practice in Canada (Toronto: Canada
Law Book, 1983) at 105; B. Archibald, “The Law of Arrest” in V. Del Buono, ed., Criminal
Procedure in Canada: Studies (Toronto: Butterworths, 1982) 125 at 145.

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[Vol. 33

The section dealing with prevention of riots is not particularly helpful
since most situations calling for the defence of another would probably not
fit within the definition of “riot”.82 Trying to determine what constitutes a
“breach of the peace” also causes some difficulty. In 1950, in Frey v. Fre-
doruk,83 the Supreme Court of Canada stated that although it was difficult
to provide an exhaustive definition,

[a] breach of the peace takes place when either an actual assault is com-
mitted on an individual or public alarm and excitement is caused. Mere an-
noyance or insult to an individual stopping short of actual personal violence,
is not a breach of the peace. Thus a householder –
apart from special police
legislation –
cannot give a man into custody for violently and persistently
ringing his door-bell.84

Thus, while a boisterous late night party may violate local noise by-laws it
does not constitute a breach of the peace. 85 On the other hand, if matters
escalate to the point where bottles are thrown and property is damaged the
police will be entitled to arrest pursuant to section 31 of the Code.86 It is
extremely important to remember that in Canada, “breach of the peace” is
not an offence. The common law offence of breach of the peace has not
been incorporated into the Criminal Code and section 8 of the Code does
not allow conviction of an offence at common law. 87 Nevertheless, section
30 of the Code allows everyone who witnesses a breach of the peace to
intervene for the purpose of preventing the continuance or renewal of the
breach and section 31 of the Code allows a peace officer to arrest any person
he finds committing a breach of the peace. In R. v. LefebvreH8 the Court
held that an arrest for breach of the peace is an adjunct to the criminal law
and is a form of preventive rather than retributive justice. The Court further
noted that the arrest does not result in a conviction, but is a preventive

Pierre v. Boisseau, [1952] B.R. 292.

82See H~bert v. Martin (1930), [1931] S.C.R. 145, [1931] 2 D.L.R. 484, 54 C.C.C. 257; St-
:3[1950] S.C.R. 517, [1950] 3 D.L.R. 513, [1950] 10 C.R. 26 [hereinafter cited to S.C.R.].
841bid. at 519, Kerwin J. quoting H. Potter, ed., Clerk andLindsell on Torts, 10th ed. (London:
Sweet & Maxwell, 1947) at 298. See also Ex parte Kane (1915), 26 C.C.C. 156 (N.B.S.C.); R.
v. Loo Manson (1925), 43 C.C.C. 30 (Alta. S.C.); Pedersen v. Hansen [1963] 2 C.C.C. 348
(B.C.S.C.).

85R. v. Atkinson (1981), 27 A.R. 47, 121 D.L.R. (3d) 363 (Q.B.).
86R. v. Lykkemark (1982), 18 Alta L.R. (2d) 48 (Prov. Ct).
87Sub-section 8(a) of the Criminal Code, supra, note 1, reads as follows:

8. Notwithstanding anything in this Act or any other Act, no person shall be con-
victed or discharged under section 662.1
(a) of an offence at common law.

88R. v. Lefebvre (1982), 1 C.C.C. (3d) 241 (B.C. Co. Ct).

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GOOD SAMARITAN

remedy in that a person may be held for up to twenty-four hours or required
to post a peace bond at common law. 89

One of the most interesting aspects of this area of discussion is whether
an individual, or a peace officer for that matter; is entitled to act in antic-
ipation of a breach of the peace. This question was addressed in Reid v. De
Groot,90 a 1963 decision of the Nova Scotia Supreme Court. This case in-
volved an appeal brought by the plaintiff from the dismissal by the trial
judge of his action for damages for false arrest and imprisonment against
two members of the R.C.M.P The Court concluded that the respondents
were justified under subsection 25(1) of the Code in arresting without war-
rant and imprisoning the appellant for what the Court considered to be a
disturbance of the peace. The trial judge had given another ground for
finding in favour of the respondents, namely, that the immediate arrest was
necessary in order to prevent disorder or injury to the person arrested or
others. The trial judge had cited authority to the effect that an arrest may
be made if a breach of the peace is apprehended. Ilsley C.J. stated that it
was doubtful whether one could arrest for an attempted offence or on sus-
picion of a breach of the peace which had not already occurred. In his view,
the arrest powers under sections 30 and 31 of the Code seemed to be confined
to breaches of the peace which had actually taken place. 91

This decision is very much in line with a recent decision of the British
Columbia Court of Appeal, Hayes v. Thompson.92 In that case two police
officers arrested the plaintiff when she attempted to re-enter a pub from
which she had been asked to leave because the officers feared that her re-
entry would create a disturbance. The trial judge directed the jury that they
should find that the officers had not witnessed a breach of the peace and
had not found the plaintiff committing a breach of the peace. At trial, the
plaintiff was successful and was awarded $2,000 damages. On appeal, the
officers argued for the first time that their power of arrest was not limited
to section 31 of the Code. Hutcheon J.A. held that the power of arrest for
a breach of the peace in section 31 is confined to breaches of the peace
which have actually taken place. In other words, the statutory arrest power

8915id. at 244, Wetmore J.. The Court cites ss 453 and 454 of the Code and the decision of
Re Compton andR. (1978), 42 C.C.C. (2d) 163,3 C.R. (3d) S-7, [1978] 5 W.W.R. 473 (B.C.S.C.),
as authority for the twenty-four hour detention and the peace bond at common law respectively.
See also R. v. Biron (1975), [1976] 2 S.C.R. 56, 30 C.R.N.S. 109, 23 C.C.C. (2d) 513. In Lefebvre,
ibid. at 245, the Court adopted the definition of “breach of the peace” found in Howell, supra,
note 20.

9OReidv. DeGroot (1963), 49 M.RR. 246,42 C.R. 252 (N.S.S.C.) [hereinafter cited to M.PR.].
9’Ibid. at 259, Ilsley C.J. He cites, as authority, H. Street, The Law of Torts, 2d ed. (London:

92(1985), 44 C.R. (3d) 316, 32 C.C.C. (3d) 134, 60 B.C.L.R. 252 (C.A.) [hereinafter cited to

Butterworths, 1959) at 88.

C.R.].

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[Vol. 33

would not extend to apprehended breaches of the peace. 93 However, the
Court then went on to find that there is a common law power to arrest for
an apprehended breach of the peace. Hutcheon J.A. held that this power is
derived from the statutory obligation of the police to prevent offences. 94

In an annotation to the decision, Bruce Archibald has provided an
interesting response. Glanville Williams has written that in England a num-
ber of activities such as riots and assaults have been analyzed as “breaches
of the peace” for purposes of the common law breach of peace arrest
powers. 95 However, Professor Archibald notes that in Canada peace officers
may arrest not only where a person has engaged in such activities but also
where, on reasonable and probable grounds, they believe he has committed
or is about to commit such offence. 96 He concludes that the prospective
arrest powers contained in the Criminal Code for indictable offences pre-
clude the necessity for any reference to “breach of the peace” arrest powers:

Indeed, where Parliament has carefully defined both powers of arrest and pro-
hibited conduct, any attempt to justify arrest in terms of pre-existing and
overlapping common law authority for breaches of the peace would be contrary
to basic notions of the supremacy of Parliament and standard canons of sta-
tutory interpretation. 97

In England, the common law arrest powers arose at a time when there
was no comprehensive legislative scheme in place setting out those powers.
It is not surprisng that judicial controversy concerning the ambit of common
law arrest powers, and in particular “arrest for apprehended breach of the
peace”, continues to this day.98 On the contrary, Archibald argues that Par-
liament should be seen to have ended the debate in this country with the
enactment of section 31 of the Criminal Code. That section does not au-
thorize the arrest of a person about to commit a breach of the peace or
where an apprehended breach of the peace is thought to exist unless the
person is about to join or renew a pre-existing breach of the peace. Given
the inclusion of the phrase “about to commit” in paragraph 450(1)(a) of
the Code in relation to indictable offences, and given its omission from
paragraph 450(l)(b) which authorizes arrests for summary conviction of-

931bid. at 323-24, Hutcheon J.A.
94Ibid. at 324-31, Hutcheon J.A.
95Williams, “Arrest for Breach of the Peace”, supra, note 20.
96Paragraph 450(I)(a) of the Criminal Code, supra, note 1 reads as follows:

450.(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and
probable grounds, he believes has committed or is about to commit an indictable
offence.

97B. Archibald, Annotation: Hayes v. Thompson (1985) 44 C.R. (3d) 316 at 317.
98Archibald, ibid., cites the decisions ofR. v. Podger, [1979] Crim. L. Rev. 524 and Howell,

supra, note 20.

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fences, Archibald submits that the absence of an arrest power for “appre-
hended breaches of the peace” in section 31 should not be viewed as
accidental. 99 In conclusion, he finds it “not only odd, but unfortunate, that
the British Columbia Court of Appeal chose to resurrect the controversial
common law power to arrest for apprehended breach of the peace by relying
on English authority … in a Canadian legislative context which neither
supports nor warrants such an approach.”‘ 00

Where a mistake is made pursuant to the common law power to arrest
for apprehended breach of the peace, the mistake must be reasonable, that
is, the person making the arrest must honestly and reasonably believe that
a breach of the peace would be committed in the immediate future. o10 Glan-
ville Williams would limit the requirement for reasonable belief to actions
in tort. He argues that even an unreasonable belief should be a defence to
a criminal prosecution for wrongful arrest.102 In any event, while there have
been repeated calls for revision to the existing statutory provisions in Ca-
nada, 10 3 it seems far more likely that sections 30 and 31 of the Criminal
Code will be repealed and that any supplementary common law rules in
relation to arrest for breach of the peace, or apprehended breach of the
peace, will be abrogated by statute.’ 4

Section 27 of the Code, which authorizes the use of force to prevent
the commission of an offence, creates another possible statutory basis for

99Archibald, ibid. at 318.
10 1 bid.
101Hayes v. Thompson, supra, note 92 at 324-25, Hutcheon J.A. The Court approved the
decision of Howell, supra, note 20 and cited the following statement from H. Street, The Law
of Torts, 7th ed. (London: Butterworths, 1983) at 82: “Anyone is empowered to arrest without
a warrant a person who is committing a breach of the peace, or who, having committed such
a breach, is reasonably believed to be about to review it, or where an imminent breach is
reasonably apprehended.”In Lykkemark supra, note 86 at 54, Cioni J. cited, with approval,
the following passage from Piddington v. Bates, [1960] 3 All E.R. 660 at 663 (Q.B.), Lord Parker
C.J.:

It seems to me that the law is reasonably plain. First, the mere statement by a
constable that he did anticipate that there might be a breach of the peace is clearly
not enough. There must exist proved facts from which a constable could reasonably
have anticipated such a breach. Secondly, it is not enough that his contemplation
is that there is a remote possibility but there must be a real possibility of a breach
of the peace. Accordingly, in every case it becomes a question whether, on the
particular facts, there were reasonable grounds on which a constable charged with
this duty reasonably anticipated that a breach of the peace might occur.

102Williams, “Arrest for Breach of the Peace”, supra, note 20 at 584.
103See Criminal Law: The General Part – Liability and Defences, supra, note 52 at 116;

Archibald, supra, note 97 at 319.

104See Law Reform Commission of Canada, Arrest (Working Paper No. 41) (Ottawa: Supply
and Services Canada, 1985) at 88-89 and Law Reform Commission of Canada, Arrest (Report
No. 29) (Ottawa: Law Reform Commission of Canada, 1986) at 47-48.

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[Vol. 33

the defence of others. Unfortunately, there is virtually no case law in the
area. One of the few decisions to examine the section has identified some
of its shortcomings. In R. v. McGregor,10 5 the accused were charged under
paragraph 381 (1)(g) of the Code with wrongfully obstructing a highway. The
accused were obstructing the road as a protest against the possible contam-
ination of the local water supply by the uranium exploration which was
occurring in the area. The accuseds’ primary defence was that their actions
were justified under sections 27 and 30 of the Code in that they had grounds
to believe that the exploration company was about to commit a common
nuisance. Ultimately, the accused were found guilty and given absolute dis-
charges. In addition to finding that the activities of the company did not
constitute a nuisance, the Court rejected the defences advanced by the ac-
cused. Without offering any discussion, Josephson J. simply stated that the
accused had not witnessed a breach of the peace.’ 06 In regard to section 27
the Court ruled there was no evidence that an offence mentioned in para-
graph 27(a)(i) had been committed, and, in any case, the Court held that
in the circumstances, this mistaken belief could not be regarded as a rea-
sonable and probable one. Further, the Court found that although the evi-
dence had established an increased risk of serious injury, it did not establish
a risk of “immediate” and serious injury as required under paragraph
27(a)(ii).107

Professor Colvin has noted that although the defence of prevention of
crime in Canada places no restrictions on whose person can be defended,
unlike the other defences, its justification is limited to the prevention of
serious offences.

s08 He has also identified several other areas of concern:

The defence is … subject to its own special limitations. The most important
of these is that the offence is likely to cause immediate and serious injury. The
other limitation, that the offence which is sought to be prevented be one for
which there can be arrest without warrant, is of no practical importance for
offences against the person. There is power to arrest without warrant for any
assault. Whether or not section 27 can justify force in defence of the person
merely depends on the immediacy and seriousness of the threatened harm.

There are two major difficulties with s. 27. First, like s. 37, its wording appears
to make the defence available in situations of self-defence. It is again submitted
that courts should avoid the absurdity by making ss. 34 and 35 exclusively
applicable for assaults upon one’s own person. Second, like s. 34(1) and s. 37,
but unlike s. 34(2) and s. 35, the wording of s. 27 does not expressly provide
for the defence to be grounded upon a reasonable mistake about the degree of

105R. v. McGregor, [1979] 3 W.W.R. 651 (B.C. Prov. Ct).
1l6Ibid. at 658, Josephson J.
I71bid at 658, Josephson J.
08Colvin, supra, note 47 at 172. The author suggests that intervention by third parties “is

presumably limited to guard against minor disputes becoming major conflagrations.”

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force which is necessary. It is submitted that an extended justification should
be read into the section, as it has been for s. 34(1), and should also be for s.
37.

Unlike the other defences, s. 27(b) does expressly provide for the defence to
be grounded on a reasonable mistake about the existence of an assault. In
addition, by using the term “reasonably necessary” to identify the degree of
force which is justified, it gives statutory recognition to the idea that drawing
fine lines is inappropriate. In these respects the draftsmanship of s. 27 is su-
perior to that of the other defences. Nevertheless, the points of difference show
again how the statutory provisions relating to defence of the person are riddled
with inconsistencies.10 9

Not surprisingly, he concludes that “[t]he law of justified force in defence
of the person is a mess.”‘110

Pursuant to section 37 of the Criminal Code everyone is justified in
using force to defend himself or “any one under his protection”. Mewett
and Manning have stated that coming to the rescue of a stranger is not
justifiable under this section.”‘ Professor Colvin argues that while there is
no established case law on the range of persons who fall within this provision
it would be sensible to interpret the phrase “under his protection” as mean-
ing the persons to whom the common law recognizes a general duty of care,
with potential liability for omitting to act in breach of this duty. This would
include members of the immediate family and helpless persons to whom a
relationship of care has been assumed. 1 2 This approach could support a
position which argues that once an individual undertakes to act in defence
of another, even a total stranger, that person has come “under his protec-
tion”. At least one Canadian decision appears to have inadvertently stum-
bled upon that possibility.” 3

19Ibid at 178.
IIoIbid.
IIA.W. Mewett & M. Manning, Criminal Law, 2d ed. (Toronto: Butterworths, 1985) at 394.
“2Colvin, supra, note 47 at 177. For a good discussion of the various bases upon which
criminal liability for omissions may be founded see Colvin, supra at 51-58, and Stuart, supra,
note 51 at 72-83.
131n R. v. Barklhouse (1983), 58 N.S.R. (2d) 393 (Prov. Ct) the accused responded to a call
for help from a complete stranger. Although the Court preferred to base its decision on the
common law defence of others, MacDonald J. at 399 referred to section 37 of the Code and
stated: “Was Mr. Barkhouse justified in entering into the fray? The express evidence is that
Mrs. Dorothy Findlay did call for help. It could well be that the Findlays at that moment came
under Mr. Barkhouse’s protection.”In an annotation to the decision of R. v. Whynot (Stafford)
(1983) 37 C.R. (3d) 198 at 198, 9 C.C.C. (3d) 449, 61 N.S.R. (2d) 33 [hereinafter cited to C.R.]
Professor Stuart appears to support use of the common law defence rather than an expanded
meaning of the phrase “under his protection” in s. 37 of the Code. At 199 he states: “The
court also took it as self-evident that any defence under s. 37 of a person under protection
would in the case of the accused be limited to the threats against her son rather than against
her neighbour. This might have been the very ancient common law view, but there is now

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III. Mistake of Fact and the Defence of Others

As we have seen, the question of which persons may be assisted and
the doctrine of mistake are central issues in both common law and statutory
bases for the defence of others. In this country the issues have been com-
plicated by the availability of both common law and statutory defences.
Early Canadian court decisions were not particularly helpful in defining the
parameters of the defence. Some courts, without making reference to the
Code provisions or the existence of the defence at common law, concluded
that a person “must not go beyond the force reasonably necessary” to defend
another, invariably a family member.” 4 Other decisions simply made ref-
erence to Code provisions such as sections 27 and 37 without elaboration
or discussion. 515

The first Canadian decision to specifically recognize the right to act in
defence of another and also attempt to provide some insight into the op-
eration of the defence was R. v. Dunham,” 6 a 1950 decision of the New
Brunswick Court of Appeal. The accused was charged with assaulting a
police officer after he intervened in a struggle between the officer, Constable
Donner, and another person, a Mr Cusack. At one point the officer threw
Cusack to the floor and began to strangle him. Dunham, who believed that
the officer was going to cause serious injury to Cusack, told him to desist
and when he did not, Dunham struck the officer on the head with a bottle.
At trial, the jury was instructed that if there was any danger, even the
slightest, of Constable Donner killing or seriously injuring Mr Cusack, then
Dunham was justified in attacking Constable Donner. The New Brunswick
Court of Appeal disagreed. Hughes J.A. held that the trial judge misdirected
the jury by failing to state that there were limits to the right of the defendant
to intervene and to the right of the defendant to use the bottle as an in-
strument of attack. In his opinion, the trial judge left the case to the jury
as if the defendant’s right to intervene was absolute, when it was not. The
jury was left with the impression that the assault was justified no matter

authority that the right to defend others is not limited by family relationships: see Williams,
Textbook of Criminal Law, 2nd ed. (1983), p. 501.” It is interesting to note that pursuant to
sub-s. 25(3) of the Criminal Code, supra, note 1, a person is justified in using force that is
intended or likely to cause death or grievous bodily harm if he believes on reasonable and
probable grounds that it is necessary for the purpose of preserving himself or “anyone under
his protection” from death or grievous bodily harm. The phrase “anyone under his protection”
has not been examined by the courts in the context of this section.

114See Slater v. Watts (1911), 16 West. L.R. 234 at 242, 16 B.C.R. 36 (C.A.), MacDonald,
C.J.A.; R. v. Wiggs, [1931] 3 W.W.R. 52 at 53 (B.C.C.A), MacDonald, C.J.B.C. See also R. v.
Drouin (1909), 15 C.C.C. 205 (Que. K.B.).

1ISR. v. Callahan (1915), 26 C.C.C. 93 (Alta. S.C.).
11R. v. Dunham, [1950] 9 C.R. 167, 95 C.C.C. 317, [1950] 1 D.L.R. 448 (N.B.C.A.) [here-

inafter cited to C.R.].

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GOOD SAMARITAN

how severe if the defendant thought there was a danger of Cusack being
killed or likely suffering grievous bodily harm. Hughes J.A. held that the
trial judge should have pointed out that the force used must not transgress
the reasonable limits of the occasion and further, the jury should have been
asked to direct its attention to whether other means less severe might have
been available and sufficient.117

Richards C.J. stated that there were two questions which had to be
answered. First, did Dunham have reasonable grounds for believing that
Constable Donner might cause Cusack’s death or cause him serious bodily
harm? If so, did Dunham use such force as was reasonably necessary to
endeavour to avoid such result? The first question, that is, Dunham’s belief
as to the degree of injury being caused to Cusack, had to be based on
reasonable grounds. In this regard, the trial judge had done an adequate
job. He had stated:

It is not what the accused thought, it is whether there was from all the cir-
cumstances of the case a reasonable apprehension that if Constable Donner
was not stopped he would have killed or done grievous bodily harm to Cusack.
If there was that reasonable belief that such might have occurred, then I think
the accused would be justified in doing what he could to prevent the killing
of Cusack or his being seriously injured by Constable Donner.

Thus, the necessity of Dunham’s belief on reasonable grounds of injury to
Cusack was quite fully presented to the jury. However, the charge did not
contain any direction on the second question as to the use of reasonably
necessary force. Because there was no limitation as to the degree of force
that might be used, Richards C.J. held that the instructions constituted a
misdirection. The direction by the trial judge could well be understood to
mean that any degree of force would be justified. This was not correct as
there had to be reference to such force as might be reasonably necessary.” 8
Unfortunately, the Dunham decision makes no specific reference to any of
the Code provisions. The decision may well be based on the notion of a
common law defence but no authority is cited. In that sense, the decision
is very similar to R. v. Robertson,” 9 a 1954 decision of the Ontario Court
of Appeal. In this case, on a charge of murder, the Court ruled that the jury
could consider, for the purposes of self-defence, whether the accused was
acting under fear for his own life or that of his stepfather. The Court made
it quite clear that the defence would be available if he feared only for the
life of his stepfather.120 However, although the Court did recognize that an

117Ibid at 177, Hughes J.
Il81bid at 173-75, Richards C.J.
11R. v. Robertson, [1954] 18 C.R. 7, O.W.N. 164, 107 C.C.C. 400 (C.A.) [hereinafter cited
‘201bid. at 10, Pickup C.J.

to C.R.].

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accused is entitled to act in defence of another, it is not apparent from the
decision whether the discussion pertains to provisions of the Code or the
defence at common law. Further, there is no indication of the Court’s view
on the concept of “reasonableness”.

This question of “reasonableness” has played a central role in the devel-
opment of the mistake of fact doctrine and its relationship to the defences.
As we have just seen, if a person acts in defence of another the question of
mistake may arise in two contexts, that is, a person may mistakenly believe
that another individual needs help or there may be a mistake made as to
the amount of force required to assist that person. The issue is whether
these mistakes should be assessed subjectively or objectively.

The case law in this area, particularly as it began to develop in the 1960s,
is very confused. The decision of R. v. Cadwallader12l is illustrative. This
case involved the self-defensive act of a fourteen-year old boy. He had shot
and killed his father and there was no issue of defence of others. However,
after noting that section 37 of the Code deals with the extent ofjustification,
Sirois J. did comment on the proper test for mistake:

The test as to the extent ofjustification is whether the accused used more force
than he on reasonable grounds believed necessary. It is not an objective test;
the determination must be made according to the accused’s state of mind at
the time. The question is: did he use more force than he on reasonable grounds
believed to be necessary?

To establish the defence there should be evidence –

(a) that the facts
amount to self-defence, and (b) that the mode of defence used was justifiable
under the circumstances.

It is clear that he acted in self-defence. On his uncontradicted evidence
he used only sufficient force as he reasonably thought necessary under the
circumstances to put his assailant out of action. You cannot put a higher test
on a 14-year-old boy than that known to our law.’2

Although Sirois J. states that the test is not objective, his use of the
word “reasonable” is troubling. Although he may be suggesting the “rea-

121R. v. Cadwallader, [1966] 1 C.C.C. 380 (Sask. Q.B.).
!22Ibid. at 387-88, Sirois J.

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sonableness of the evidence” rule as described in R. v. Beaver,123 his com-
ments have been interpreted as creating a test based on the perceptions of
the “reasonable 14-year-old”. Professor Stuart states that this “is surprisingly
held to be a subjective inquiry.”‘ 124 He prefers the inventive interpretation
of Mr Justice Martin in R. v. Baxter125 where he held that although sub-
section 34(1) of the Code2 6 involved a test of proportionality, it did not
involve a purely objective test:

The formulations in Cadwallader and in Baxter are identical in rejecting
a mechanistic and objectively determined test of proportionality but there are
significant differences in respect of the treatment of the defender’s belief. Mr.
Justice Martin’s approach is preferable in his forthright acknowledgement of
an objective element: the belief must be honest and reasonable. This is in
contrast to the subjectivity required by the section 17 formulation of duress
but consistent with the English common law of self-defence. Our law of self
defence has indeed for a long time adopted an objective standard but one that
takes some individual factors into account. This was indeed the case and the
true characterization of the approach in Cadwallader. Mr. Justice Martin also
makes it clear, and this is surely preferable to the collapsing of the inquiries
in Cadwallader, that there is an independent objective inquiry as to whether,
given the honest and reasonable belief as to the nature of the attack, the defence
was, in all the circumstances, necessary. 2 7

Cases specifically involving the defence of others also demonstrate in-
consistent approaches to the question of mistake. Gambriell v. Caparelli2 8
was a civil action for damages arising out of a dispute between neighbours.
The plaintiff, aged fifty, and a young man of twenty-one had been involved

231″[T]he essential question is whether the belief entertained by the accused is an honest one
and … the existence or non-existence of reasonable grounds for such belief is merely relevant
evidence to be weighed by the tribunal of fact in determining that essential question.” R. v.
Beaver, [1957] S.C.R. 531 at 538, 26 C.R. 193, Cartwright J.

In the United States, the Model Penal Code supports a purely subjective test for mistake.
See American Law Institute, Model Penal Code: Proposed OfficialDraft (Philadelphia: American
Law Institute, 1962), par. 3.05(1)(b). For a criticism of this approach, see Robinson, supra,
note 2 at 102. LaFave & Scott, supra, note 2 at 406 have expressed a preference for a reasonable
belief. See also J. Hall, General Principles of Criminal Law (New York: Bobbs-Merrill, 1960)
at 366-67; G. Fletcher, Rethinking Criminal Law (Boston, Mass.: Little, Brown, 1978) at 696.
124Stuart, supra, note 51 at 407. At 405, Professor Stuart states: “The defences of person and
property in Canadian law are bedevilled by excessively complex and sometimes obtuse Code
provisions. It is small wonder that our courts have sometimes ignored Code rules or been
inventive in their interpretation of them.”

125R. v. Baxter (1975), 33 C.R.N.S. 22, 27 C.C.C. (2d) 96 (Ont. C.A.).
126Criminal Code, supra, note 1.
127Stuart, supra, note 51 at 407-408. At 408 the author notes: “Apart from the recognition
that strict proportionality is not demanded, there are no automatic rules that the defender
cannot strike the first blow –
engage in a ‘pre-emptive strike’ – or cannot succeed in the
defence of self-defence if he could have retreated.” See also Colvin, supra, note 47 at 172-75.
128Gambriell v. Caparelli (1974), 7 O.R. (2d) 205, 54 D.L.R. (3d) 661 (Co. Ct) [hereinafter

cited to O.R.].

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in a minor car accident. After a yelling match, the young man was being
choked by the plaintiff when his mother arrived. She was fifty-seven years
of age. In an effort to help her son she struck the plaintiff several times with
a metal three-pronged garden cultivator tool attached to the end of a five-
foot-long wooden handle. The Court accepted her evidence that she feared
for the safety of her son.

In reaching his decision dismissing the action, Carter J. relied on the
English decisions of Duffy, Chisam and Fennell.129 He cited Duffy for the
proposition that the necessity of intervention and the reasonableness or
otherwise of the manner of intervention are questions of fact and Chisam
for the proposition that the defence of self-defence would be available if the
accused believed on reasonable grounds that the relative or friend was in
imminent danger, even though those reasonable grounds were founded on
a genuine mistake of fact. 130 He also cited Fennell where the Court stated:
“Where a person honestly and reasonably believes that he or his child is in
imminent danger of injury it would be unjust if he were deprived of the
right to use reasonable force by way of defence merely because he had made
some genuine mistake of fact.”‘ 131 Having determined that these criminal
cases were relevant in the civil matter before him Carter J. concluded that
“where a person in intervening to rescue another holds an honest though
mistaken belief that the other person is in imminent danger of injury, he is
justified in using force, provided that such force is reasonable; and the
necessity for intervention and the reasonableness of the force employed are
questions to be decided by the trier of fact.’ 1 32

In the result, the Court found that the defendant was justified in in-
tervening because she held an honest belief that her son was in danger.
Carter J. also ruled that the degree of violence was justified and not unrea-
sonable in the circumstances.133

Although this case involved a civil matter the decision of the Court is
important because of its apparent departure from the English decisions
which werd cited and the Cadwallader decision which was not. Arguably,
Carter J. has suggested that the force used must, objectively, be considered
reasonable. In other words, it would not be a defence if the alleged wrongdoer
honestly, or even honestly and reasonably, believed the force was necessary.
The force used must, in fact, be reasonable. On the other hand, his decision
could be interpreted to suggest that the belief in the need for forceful in-

129Duffy, supra, note 15; Chisam, supra, note 27; Fennell, supra, note 28.
130Gambriell v. Caparelli, supra, note 128 at 209, Carter J.
13Ibid., citing Fennell, supra, note 28 at 431, Widgery J.
132Ibid. at 210.
133Ibid. at 210-11.

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tervention need only be an honest belief; it would not have to be reasonable.
Under this approach the courts would subjectively evaluate one belief (the
need for intervention) but objectively evaluate another belief (the extent of
force required).

In R. v. Stanley134 the British Columbia Court of Appeal took quite a
different approach, namely, using the tests established pursuant to section
34 of the Code as the basis for the assessment of mistake in defence of
others. In this case, a group of individuals described by Branca J.A. as “a
bunch of five drunken goons”‘135 went to a private residence seeking a fight
with the defendant. The Court stated that Stanley had the right to defend
himself and his common law wife who was described as “a person under
his protection”, 136 the wording in section 37 of the Code. However, section
34, which makes no reference to third parties, was used as the basis for the
discussion in regard to the death of one of the assailants:

Section 34 applied, as here Blosky was committing a deemed unprovoked
assault under the provisions of s. 41(2). So it was then justifiable for Stanley
both for his self-defence and in the defence of his home to repel force by force,
if the force used was not intended to cause death or grievous bodily harm and
was no more than was necessary for Stanley’s defence of himself and of Debbie,
a person under his protection, or to remove Blosky, a trespasser, from his home.

Under subs. (2) of s. 34 Stanley was justified in causing the death of or
grievous bodily harm to Blosky by repelling Blosky’s assault if the evidence
disclosed that Stanley reasonably apprehended that his death might be caused
or that he might suffer grievous bodily harm from the violence with which
Blosky and the others originated the assault and the method by which Blosky
and the others pursued their purpose and if Stanley believed on reasonable
and probable grounds, even though he was mistaken in that belief, that he
could not otherwise preserve himself or Debbie from death and/or grievous
bodily harm.

The law of necessity gave Stanley the right to protect himself or Debbie

from death or grievous bodily harm, even if Blosky had to be killed.

The law provides favourably for a person such as Stanley who is assaulted
if he, in the agony of the occasion, reasonably but mistakenly believes that he
must kill in order to save himself from death or grievous bodily harm.

The law does not expect one in such circumstances to weigh with too
much nicety the force that might be necessary to repel the attack and, too, the
law does not expect one to wait until he is struck before he strikes back. If he

34R. v. Stanley, [1977) 4 W.W.R. 578, 36 C.C.C. (2d) 216 (B.C.C.A.) [hereinafter cited to
1

W.W.R.].

1351bid. at 590, Branca J.A.
136Ibid. at 594.

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does so it may well be that it will be too late for him to retaliate in order to
preserve himself.137
This decision must be contrasted with the case of R. v. Basarabas.138
In this case the British Columbia Court of Appeal, the same Court that
rendered the Stanley decision, was concerned with an appeal from a con-
viction for second degree murder. The deceased, one Falbo, had been stabbed
to death and the accused, Basarabas, argued that she had not intended to
murder him but that her action was by way of self-defence either to protect
herself or another girl. This other girl was her co-accused, Spek. Their re-
lationship was described as that of a “mother-daughter” or a “big sister”. 139
This necessarily raises the question of how close the relationship must be
before the defence of others will operate. Craig J.A. did state that on the
facts of this case he had some difficulty with the proposition that each
appellant was under the protection of the other. 40 In any event, he went
on to state that section 37 applied only to self-defence in a case other than
one involving the intentional infliction of death or grievous bodily harm
and further, that subsection 34(2) and section 35 have no application to a
situation where the accused claims to be defending someone under his pro-
tection.’ 4 1 He adds:

Section 37 applies to self-defence generally. I incline to the view that in a
case involving death the issue of self-defence should be determined by reference
to ss. 34 and 35, not to s. 37. On the other hand, in Lowther v. The Queen
(1957), 26 C.R. 150 at p. 163 (Que. Q.B.), Hyde J.A. expressed the view that
s. 37 was “an extension” of s. 34. I assume that when he referred to s. 34 he
meant s. 34(1) which deals with unintentional death, not s. 34(2) which deals
with intentional death, and that when he said “extension” he meant that s. 37
was available to an accused not only in a case in which he was defending
himself but also in a case in which he was defending someone under his
protection.

In telling the jury that Basarabas or Spek was entitled to use force to repel
Falbo’s assault “and if necessary, kill Falbo”, the Judge seems to be telling the
jury that s. 37 includes an intentional killing. I doubt that he meant to convey
this impression, but if he did he was wrong. An intentional killing can be
justified as self-defence only under ss. 34(2) and 35.142

Counsel for the appellants argued that based on the Stanley decision,
subsection 34(2) was available to Basarabas if she was defending Spek. Craig
J.A. responded: “Although some of the comments of Branca J.A. … tend

‘371bid. at 593-95.
“IR. v. Basarabas (1981), 62 C.C.C. (2d) 13 (B.C.C.A.).
’39Ibid. at 19, Craig J.A.
“4Ibid. at 26.
41’bid. at 26.
1
‘421bid. at 25, 28.

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to support this submission, I think that an examination of the judgment as
a whole and the other factors in the case do not justify the conclusion.” ‘143
He did not elaborate.

The net effect of this judgment is that even where circumstances war-
rant, persons may intentionally cause death or grievous bodily harm only
in defence of themselves and not in defence of others. Such an approach
should be viewed as untenable in that it created different categories of
“worth” in regard to human life. It should go without saying that the pres-
ervation of one life is no more and no less important than the saving of
another life. The decision in Basarabas does not offer any specific comment
on the choice between subjective or objective assessment for mistakes made
in situations involving defence of others. Because the decision accepts the
comments in R. v. Lowther,144 that is, that section 37 is an “extension” of
subsection 34(1), it is probably safe to suggest that the Court favours an
objective evaluation of mistake. This certainly appears to be the favoured
position in recent cases although there are exceptions.

For example, in R. v. Shannon, 45 decided by the British Columbia
Court of Appeal four months before Basarabas but not cited in the latter
decision, the accused appealed his conviction for second degree murder. He
testified that he had shot and killed the deceased because he feared for his
own life and that of his stepson. He believed that the deceased, Black, had
a gun and intended to shoot him. Although there was conflicting evidence,
Black may actually have been unarmed at the time of the incident. Citing
the Ontario Court of Appeal decisions in Baxter 46 and Bogue,147 Mac-
Donald J.A. stated that under subsection 34(1) of the Code, if the force used
was no more than necessary for the purpose of self-defence then it was
justifiable. He added that the test applied under this subsection is not purely
objective and that the doctrine of mistake is applicable. MacDonald J.A.
also held that under subsection 34(2), there was no specific requirement
that the force used by the accused be proportionate to the unlawful assault
if the subsection is otherwise satisfied. Here the concept of “reasonable
belief’ is described as subjective:

Whether the force employed was excessive is judged by the state of mind of
the accused at the time. The reasonable apprehension of death or grievous
bodily harm in s. 34(2) first must meet an objective standard. Additionally,
the subsection introduces a subjective element, namely, the belief of the accused
that he cannot otherwise preserve himself from death or grievous bodily harm.

143Ibid. at 26.
144Lowther v. R., [1957] Q.B. 519, 26 C.R. 150 at 163, Hyde J.
145R. v. Shannon (1981), 59 C.C.C. (2d) 229 (B.C.C.A.).
‘ 46Supra, note 125.
147R. v. Bogue (1976), 13 O.R. (2d) 272, 30 C.C.C. (2d) 403, 70 D.L.R. (3d) 603 (C.A.).

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And that belief must be on reasonable and probable grounds. An accused may
reasonably believe that he was in imminent danger from an attack, but still
be mistaken in that belief.148

In regard to section 37 of the Code, MacDonald J.A. rejected criticisms
of the trial judge’s instructions on that section. The trial judge had advised
the jury that the conduct of the accused would still be culpable homicide
if “the force used … was more than was reasonably necessary under the
circumstances… .”149 Suffice it to suggest that while the courts continue to
pay lip service to the concept of subjective fault, while the test is not “purely”
objective any more than it is “purely” subjective, an objective evaluation
is being used. Use of a purely objective evaluation in regard to the amount
of force used would create serious problems. For example, if a person was
mistaken, even reasonably mistaken, as to the need to intervene, then ob-
viously the amount of force used, no matter how small or great would not,
in fact, be necessary. Thus, in order to avail oneself of the defence of third
persons under the provisions in the Code, there must be an honest and
reasonable belief that intervention is required and the force used to achieve
that result must be reasonably necessary. 50 A simple honest belief in the
necessity of defensive measures or the extent of force required will not be
sufficient to found the defence.

These issues were touched upon in the 1983 decision of the Nova Scotia
Court of Appeal, R. v. Whynot (Stafford). 15 ‘ The accused was charged with
the first degree murder of her common law husband. The evidence revealed

148Shannon, supra, note 145 at 234, MacDonald J.A.
149Ibid. at 235.
150See Stuart, supra, note 51 at 405-409. Compare G. Gameau, “The Law Reform Com-
mission of Canada and the Defence of Justification” (1983) 26 Crim. L.Q. 121 at 126-27. In
Principles of Criminal Law, supra, note 47 at 174-76, Professor Colvin states:

Under s. 34(1), the force used by a defender must be “no more than is necessary”
…. On a literal reading, s. 34(1) would not even allow for a mistake which is
reasonable to ground the defence. Section 34(2) does expressly allow for reasonable
mistakes….

If s. 34(1) imposes a purely objective test of necessity but s. 34(2) allows for some
reasonable mistakes, there is an inconsistency between the two provisions. In R. v.
Baxter Martin J.A. of the Ontario Court of Appeal suggested that reasonable mis-
takes should permit a defence under both provisions …

It is also submitted that, under both provisions, a reasonable mistake about the
existence of an assault should permit a defence. There is no good reason to distin-
guish a mistake about the existence of an assault from a mistake about its violence
or about the degree of force which was necessary to repel it.

If a reasonable mistake can ground a defence under s. 34(1), then presumably it
can also ground a defence under s. 37.

’51Whynot (Stafford), supra, note 113,

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that the husband was a very large and powerful man prone to violence
against family members, especially when drinking or under the influence of
drugs. On the day in question, he had been drinking heavily and had threat-
ened to “deal with” the sixteen-year old son of the accused. When Mr
Stafford passed out in a truck being driven by the accused, she shot and
killed him. It was the theory of the Crown that the death was planned and
deliberate and that the accused was aware of her act. Part of the theory of
the defence was that she had shot Stafford in the belief that he was going
to assault her son. Ultimately, after a new trial ordered by the Nova Scotia
Court of Appeal, she pleaded guilty to manslaughter and received a sentence
of six months’ imprisonment and two years’ probation.

The key issue before the Nova Scotia Court of Appeal was the original
trial judge’s instruction in regard to section 37 of the Code. In his charge,
Burchell J., the trial judge, had stated:

It’s therefore not a question of whether the accused thought it was necessary
to shoot Mr. Stafford to defend persons under her protection in her particular
state of mind at the time in question, it’s a question of whether, for that purpose
of defending those under her protection, the killing of Mr. Stafford was objec-
tively or actually a matter of necessity. So you must look at the means employed
in self-defence and decide whether those means were necessary. In addressing
that question, of course, you may take into account what you know about the
character and disposition of Mr. Stafford. But it is on an objective examination
of what was necessary under the circumstances, not from the perspective of
the accused, that you must judge the question of whether the force used was
excessive or not.152
When the jury asked to be re-charged on section 37, Burchell J., the
trial judge, repeated his comments about the need for an objective evalu-
ation in regard to the amount of force used. However, in regard to the
question of whether or not intervention was required he adopted a more
subjective approach suggested by some of the earlier decisions. Burchell J.
instructed the jury that in considering whether the accused did act to defend
herself or persons under her protection they should “take into account the
state of mind of the accused and all factors affecting her state of mind.”‘153

I52Ibid. at 211, Hart J.A. He added: “Under no circumstances may that defence be raised

as a cloak for retaliation or revenge.”

153Ibid. at 216. In regard to the second question, that is the amount of force used, Burchell
J. stated: “[I]t is not from the perspective of the accused, that you should look at the question
you should look at that question as an objective question, and it really is whether an ordinary

reasonable person who knew the kind of man William Stafford was would in the circumstances
have believed that it was necessary to kill him.”In R. v. Rochon (1987), 1 Y.R. 266 at 267-68
(Yukon Terr. Ct), Ilnicki J., the Court, without citing any authority, offered the following com-
ment on s. 37 of the Code.

In order for the accused to avail himself of this defence of self defence, I must
decide whether the use of force by the accused was necessary to protect his son

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The Crown appealed a jury verdict of not guilty. The Nova Scotia Court
of Appeal allowed the appeal and ordered a new trial on the basis that,
given the evidence in the case, the trial judge had erred in placing section
37 of the Code before the jury. Hart J.A. held that since no one was being
assaulted at the time of the killing there was no need to protect anyone from
an assault. Accordingly, the jury should not have been permitted to consider
a possible assault as a justification and section 37 should not have been left
with them.154 These comments flow from a very narrow definition of assault.
Hart J.A. stated that since the legal definition of “assault” had not been
placed before the jury, they “might well have understood that threats alone
could amount to an assault.”‘ 155 He added that a person who seeks justifi-
cation for preventing an assault must be faced with an actual, and not simply
a threatened, assault before section 37 can be invoked. He also stated that
the assault must be life-threatening before a person can be justified in killing
in defence of his person or that of someone under his protection.156

As Professor Stuart points out in his annotation to this case it has long
been clear that under the general assault definition in the Criminal Code
the two major forms of assault are applying force or threatening to apply
such force. He also notes that under section 34 of the Code there is no
automatic rule that the defender cannot strike first.157 Accordingly, the de-
cision must be viewed with a certain amount of skepticism.

In some cases in recent years the Ontario Court of Appeal chose not
to elaborate on the defence of third person and the operation of section 37
even where the opportunity clearly presented itself.’58 However, in a recent
unreported trial before the Supreme Court of Ontario, Mr Justice Campbell,
in his charge to the jury, provided an extensive discussion of section 37 of
the Code. R. v. Anich’ 59 provided one of the clearest opportunities for a

from assault and if the answer is yes, whether the force used was excessive. To
determine this issue one must look at the state of mind of the accused when the
incident occurred. Based on what the accused observed, as related in his testimony,
I find that his observations cannot be construed as sufficient to justify an assault
of this nature on the peace officer. Moreover, I find as a fact that the actions of the
accused in swinging a garden rake at the head of the peace officer constitute the use
of more force than was necessary under the circumstances.

154 Whynot (Stafford), ibid. at 218-19, Hart J.A.
155Ibid. at 217.
156Ibid. at 218.
157Stuart, Annotation: R. v. Whynot (Stafford), supra, note 113 at 199. For the proposition
which allows a pre-emptive strike, Stuart cites R. v. Antley, [1964] 1 O.R. 545, 42 C.R. 384,
[1964] 2 C.C.C. 142 (C.A.) and R. v. Stanley, supra, note 134. As noted supra, note 136, the
Stanley case may be viewed as a case of defence of third person.

158See R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.).
159R. v. Anich, in the Supreme Court of Ontario, Trial Proceedings, Charge to the Jury, Before
the Honourable Mr Justice Archie Campbell, at Sault Ste. Marie, Ontario, 21-30 April 1986.

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Canadian court to comment on the defence of third persons. Mr Anich, a
twenty-year old Sault Ste. Marie man, was acquitted on a charge of second-
degree murder in the shooting death of his father. The jury heard during
the seven-day trial that Frank Anich, age forty-four, had frequently assaulted
his wife and threatened to kill her. On the night in question, witnesses said
Mr Anich returned home shortly before 8:00 p.m. and started to threaten
both his wife and his son and to smash things in the kitchen. The son told
the Court that he feared his father really meant to carry out his threats. He
said he went to his room and took two bullets from a drawer, took a .303-
calibre rifle from the basement and went back upstairs. He testified that he
saw his father moving toward his mother with hands outstretched, and he
feared for her life. He said he fired a shot, and ran to the home of a neighbour
and called the police. 160

Mr Justice Campbell advised the jury that Anich’s main defence dealt
specifically with the situation where the accused acted under a reasonable
apprehension of death or grievous bodily harm to his mother. He noted that
in this defence the accused may use excessive force, that is, he may use
force that is excessive having regard to the circumstances depending on
what he reasonably believes. Mr Justice Campbell then proceeded to read
the appropriate provision of the Criminal Code to the jury. However, the
provision read to the jury was, in fact, a combination of subsection 34(2)
and section 37 of the Code.

Everyone is justified, if a person under his protection is unlawfully assaulted
and he causes death or grievous bodily harm in repelling the assault, if

(a) 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

(b) he believes on reasonable and probable grounds that he cannot otherwise
preserve the person under protection from death or grievous bodily harm. 16′

Subsection 34(2) of the Code makes no reference to the defence of
others. This combining of Code provisions is particularly curious in view
of the Ontario Court of Appeal decision in R. v. Mulder62 where Arnup
J.A. examined the relationship between sections 34 and 37 and found that
while section 37 introduces the concept of proportionate force, this pro-
portionality aspect was not a requirement of subsection 34(2):

16’Ibid.
161Anich, supra, note 159 at 39. Campbell J. did not specifically address the question of
whether the mother was “under the protection” of the son, as per the language of s. 37. He
appears to have assumed that this was the case.

162R. v. Mulder (1978), 40 C.C.C. (2d) 1 (Ont. C.A.).

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This section [s. 37] introduces the concept of “proportionate force”; it must
not be more than is necessary to prevent the assault. There is no similar
language in s. 34(2). The jury might well draw the erroneous inference that the
degree of force permitted under the two sections was the same, and that despite
reasonable apprehension of death or grievous bodily harm, no more force can
be used in self-defence than is necessary under the circumstances to prevent
death or grievous bodily harm. Ifs. 37 was to be referred to, it was incumbent
on the trial Judge to distinguish its wording from that of s. 34(2) and thus
avoid “watering down” the defence afforded by s. 34(2).163

Thus, in regard to section 37, these comments could be used to base
an argument that an accused is not entitled to use excessive force. Professor
Stuart has argued that the concern with “watering down” the defence under
subsection 34(2) is of “doubtful significance since our Courts do not insist
on a mechanistic approach to proportionality where there is an element.” 64
Professor Colvin notes that section 37 does not directly impose the limi-
tations which are found in subsection 34(2) and section 35. He is concerned
that while the general prohibition on the use of excessive force under sub-
section 37(2) may secure the same result there is no guarantee that triers of
fact will apply it in this way. Colvin argues that it would be absurd if someone
could escape the limitations of subsection 34(2) and section 35 merely by
claiming a defence of prevention of assault under section 37 rather than
self-defence. He suggests that the best way to avoid “this absurdity” is to
treat self-defence as the exclusively available defence for assaults upon one’s
own person. He adds that an alternative way of avoiding absurdity is to
read the limitations of subsection 34(2) and section 35 into the defence of
prevention of assault. This approach would make those limitations appli-
cable to the defence of persons under one’s protection. 65 Again, an objective
evaluation is preferable to a “purely objective” and strict proportionality
requirement. In his explanation of the provision which he left with the jury
in the Anich case, Campbell J. told them that the death was justified if the
accused caused the death under reasonable apprehension of death or griev-
ous bodily harm to his mother and if he believed, on reasonable and prob-
able grounds, that he could not otherwise preserve her from death or
grievous bodily harm. 166 By way of emphasis he added: “Remember also
that the force used by the accused doesn’t have to be proportionate to the
force he repelled. The important thing is whether the accused reasonably
believed that the force used was necessary. He might be wrong. He might
be mistaken, so long as he had an honest and reasonable belief that the
force he used was necessary.”‘ 167 The instruction provided by Campbell J.

1631bid at 5, Arnup J.A. See also above, text accompanying notes 138-42.
164Stuart, supra, note 51 at 411.
165Colvin, supra, note 47 at 177.
166Anich, supra, note 159 at 41, Campbell J.
Z67Ibid, at 57.

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GOOD SAMARITAN

should be applauded not just for its creativity but also for its sense of
fairness. This is an excellent example of a court’s ability to overcome poor
draftsmanship while maintaining the spirit and clear intent of the legislation.

Unfortunately, when Campbell J. turned his attention to a combination
of subsection 34(1) and section 37 he appears to have reverted to a purely
objective evaluation. He explained to the jury that if the accused did not
intend to cause death or grievous bodily harm then, unlike the previously
discussed defence, there was no justification for the use of more force than
was necessary. He described this defence as more limited and stated that
“the accused cannot use more force than is, in fact, necessary.”‘ 168 Surpris-
ingly, a third possible defence put forward by Campbell J. is section 37 itself
which he read to the jury. Again, he stated that “unlike the main defence,
the force used cannot be excessive, while in the main defence the force used
by the accused can be excessive so long as he believes honestly, on reasonable
grounds, that it is necessary.”‘ 69 With respect, these comments not only
create apparent contradictions within the charge itself but appear to be very
much at odds with the current approach of the Ontario Court of Appeal in
decisions such as R. v. Baxter.170 In Canada today, the doctrine of reasonable
mistake in regard to the law of self-defence should be seen to override the
remaining vestiges of the proportionality rule.

This takes us to the important question of whether the defence of mis-
take should be evaluated on a different basis simply because it arises in the
context of self-defence. Professor Colvin has noted that “objectivist ideas
about criminal culpability govern matters such as entitlement to a defence
where a mistake has been made about the appropriate degree of force. The
law of justification has no parallel to the rule that an unreasonable mistake
can provide a defence of lack of mens rea.”‘ 7 Accordingly, a mistake made
in the context of a justification such as the defence of others, must be a
reasonable mistake. As Colvin notes, there would be a distinct advantage
to having one’s self-defensive conduct labelled as an excuse rather than a
justification, namely, the availability of an honest, albeit unreasonable, mis-
take about the appropriate degree of force.’ 72 Our understanding has not
been advanced by the judgment of Wilson J. in Perka where she accepts
the validity of the distinction between justification and excuse but states
that an act of necessity is sometimes justified and sometimes excused. 173

168Ibid. at 58.
169Ibid. at 59. Interestingly, in regard to the possible use of s. 27 of the Code, Campbell J.
noted at 59 that an honest and reasonable mistake as to the amount of force required to prevent
the commission of an offence would suffice.

170Supra, note 125.
171Colvin, supra, note 47 at 167. See below, text accompanying notes 188-94.
172Ibid. at 168.
173Supra, note 46 at 268-79, Wilson J.

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[Vol. 33

Although there may be some concern that in the context of the defence of
others, mistakes could be assessed subjectively or objectively depending on
whether the conduct was classified as a justification or excuse, this is unlikely
to occur since the criminal law has tended to treat the two kinds of defences
as mutually exclusive categories: “A given type of situation is taken to de-
mand either a justifying defence or an excusing defence but not both. The
provision of a justification for something like self-defence is therefore taken
to preclude any excusing defence relating to self-defence.”‘ 174

The debate has been further clouded by the notion of “partial justifi-
cation” raised in recent decisions of the Supreme Court of Canada. These
decisions held that, in Canada, there is no qualified defence whereby the
use of excessive force in self-defence or prevention of crime reduces murder
to manslaughter. 75 The use of an objective evaluation of the extent of
permissible force will by analogy play a significant role in cases involving
the defence of others. It is interesting to note that in R. v. Gee,176 the accused
maintained that he and his co-accused were defending an associate from an
assault being committed by the deceased. Surprisingly, defence of third per-
sons was not discussed in the Alberta Court of Appeal or the Supreme Court
of Canada.

The decision of Gee is based to a very considerable extent on the specific
wording of section 27 of the Code which authorizes the use of force to
prevent the commission of an offence. The use of language such as “rea-
sonably necessary” and “reasonable and probable grounds” somewhat limits
the potential for a subjective assessment. Nevertheless, in the Alberta Court
of Appeal, McDermid J.A. held that the law in Canada was as in Australia
and that an honest but mistaken belief that no more force is being used
than is necessary is a defence that reduces what would otherwise be murder
to manslaughter. Such defence was held applicable to the defence of self-
defence by -virtue of subsection 7(3) of the Criminal Code. He also held that
the defence is applicable where an accused’s defence is that the force was
used to prevent the commission of a crime. 177 In the Supreme Court of
Canada, Dickson J. attempted to describe the concurring opinions of Prowse
J.A. and Moir J.A.:

174Colvin, supra, note 47 at 168. As noted supra, note 49, in Perka at 276 Wilson J. stated
that on the existing state of the law the defence of necessity as justification would not be
available to the person who rescues a stranger since the absence of a legal duty to rescue
strangers reduces such a case to a conflict of a legal with a purely ethical duty.

175See Brisson v. R., [1982] 2 S.C.R. 227, 29 C.R. (3d) 289, 69 C.C.C. (2d) 97; R. v. Gee,
[1982] 2 S.C.R. 286, 29 C.R. (3d) 347, 68 C.C.C. (2d) 516 [hereinafter cited to S.C.R.]; R. v.
Faid, [1983] 1 S.C.R. 265, 33 C.R. (3d) 1, 2 C.C.C. (3d) 513.

1761bid.
177Geev. R. (1980), 19 C.R. (3d) 222 at 228, 55 C.C.C. (2d) 525 (Alta C.A.), McDermid J.A.

See sub-s. 7(3) of the Criminal Code, supra, note 1.

1988]

GOOD SAMARITAN

If I understand his judgment correctly, Mr. Justice Prowse purports to deal
with the question on the basis of the mens rea required for murder; a person
who honestly, but erroneously, believes that the force he is using is reasonable
lacks the necessary intent for murder. Mr. Justice Moir agreed with Justice
Prowse’s conclusion but not his reasoning. He based his judgment upon the
fact that “even though there was an intent to kill or injure it may be excused
or forgiven because of the surrounding mitigating circumstances” [p. 245] and
hence the possibility of reducing the charge of murder to manslaughter should
be considered. An accused might apply force knowing that the result would
be death or grievous bodily injury. In this sense, the accused would fall prima
facie within the definition of murder in s. 212. However, if the accused applied
force under the honest belief that it was necessary, then he could not be guilty
of murder. Further, it does not appear that this belief need be reasonably held.
In these circumstances the jury should “reduce” the charge of murder to one
of manslaughter.17 8

Although Dickson J. may have had some difficulty deciphering the decisions
of the Alberta Court of Appeal he was patently aware of the unique approach
taken in that Court. He stated that this was the first time in Canada that a
partial defence had been allowed to reduce murder to manslaughter. Pre-
viously, there had been no “half-way house” and the defence of justification
pursuant to section 27 had been regarded as a total defence, entitling the
accused to an acquittal, or no defence at all. 179 Dickson J. rejected the
concept of “partial justification” for the use of excessive force. Rather, he
held that section 27 allowed a justification for as much force as is reasonably
necessary to prevent the commission of an indictable offence. If the defence
was established there would be an acquittal, even where there was an intent
to kill on the part of the accused. 8 0 Thus, the key to resolution of the
question is whether, objectively, the force was necessary.

Professor Allan Manson has sharply criticized the decision of the Su-
preme Court which has determined, in effect, that under the provisions of
the Code an honest belief in the need for self-defensive measures or the
extent of force required for such intervention would not act as a justification:

The rejection of the qualified defence by Dickson J. would leave situations
of “lesser culpability” without any form of mitigation, since murder compels
a mandatory sentence of life imprisonment. Assuming that the actor has de-
veloped the honest belief that he must kill or cause grievous bodily harm to
protect himself, then he must bring himself within s. 34(2) if justification is to
be found. He will not be justified if his apprehension of danger, when objectively
viewed, is found to be unreasonable. Alternatively, he will not be justified even
though the danger was real or reasonably apprehended if the actor’s response
exceeded what he could reasonably have considered necessary. In other words,

178 Gee, supra, note 175 at 297, Dickson J.
1’9Ibid. at 297-98.
ISOIbid. at 301.

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[Vol. 33

the Code does not justify the acts of someone whose apprehension of danger
is unreasonable or who defends himself with unreasonably excessive force.’ 8′
These concerns should be considered applicable to cases involving the
defence of others, particularly if section 37 is viewed as an “extension” of
section 34 of the Code.

Manson expresses surprise that Dickson J. does not support a subjective
assessment of the defence since in decisions such as Pappajohn v. R.,182 he
“has articulately and persuasively carried the Supreme Court towards the
subjectivist view of criminal law, often with substantial reliance on Glanville
Williams: re mistake of fact … . However, when dealing with a defence,
Dickson J. has chosen not to take the opportunity to give equal play to
subjectivism.”‘ I8 3 On the other hand, as Manson himself notes, Dickson J.’s
hands were, to a large extent, tied by the legislation. It would be difficult
for the Supreme Court to completely ignore the word “reasonable”, partic-
ularly, as in subsection 34(2) of the Code, where it appears several times.
Professor Manson sees a way toward a more subjective approach
through the use of subsection 7(3) of the Code which allows the use of the
common law defences. This approach assumes that the common law jus-
tifications are, in fact, evaluated on a subjective basis, a matter of some
considerable and ongoing debate.184 In any event, Dickson J. appeared to
reject this possibility in Brisson v. R. where he stated: “Sections 25 to 45
of the Canadian Criminal Code equally cover comprehensively and au-
thoritatively the occasions on which the use of force is legally justified. There
would seem to be little room for competing or supplementary common law
doctrine.” 185 Professor Manson objects; he argues that in other contexts the
Supreme Court has used subsection 7(3) to resurrect a common law defence
to murder. He cites Paquette v. R. 186 where the Court used the common law
defence of duress despite the existence of a statutory defence in the Code.187

’81A. Manson, “Excessive Force in the Supreme Court of Canada: A Comment on Brisson

and Gee” 29 C.R. (3d) 364 at 370.

182Pappajohn v. R., [1980] 2 S.C.R. 120, 14 C.R. (3d) 243, [1980] 4 W.W.R. 387.
183Manson, supra, note 181 at 370. At 371, the author cites the following passage from
Williams, Textbook of Criminal Law, supra, note 35 at 454-55: “This recital of reasons strongly
indicates that the subjective view is preferable. It should be applied not only to the existence
of danger but to its magnitude.”

184See above, text accompanying notes 39-44.
185Brisson v. R., supra, note 175 at 251, Dickson J.
l86Paquette v. R., [1977] 2 S.C.R 189, 39 C.R.N.S. 257, 30 C.C.C. (2d) 417. See the recent

decision R. v. Mena (1987), 57 C.R. (3d) 172, 34 C.C.C. (3d) 304, 20 O.A.C.,50 (C.A.).

’87At 372, Manson, supra, note 181 adds: “[I]fthe real concern is that Parliament has spoken
extensively and clearly about self-defence, leaving no room for matters of common law, one
should consider the Supreme Court’s application of s. 7(3) with respect to whether autrefois
acquit is available in summary conviction proceedings: see R. v. Riddle, [1980] 1 S.C.R. 380,
[1980] 1 W.W.R. 592, 48 C.C.C. (2d) 365 … per Dickson J. at p. 373.”

1988]

GOOD SAMARITAN

These comments raise two immediate concerns. First, as noted above,
the application of the common law defence-would amount to an exercise
in futility if there were no appreciable difference from the Code provision,
in particular, the use of objective evaluation. On the other hand, the com-
mon law defence is not limited to “anyone under his protection” as per
section 37 of the Code, a phrase which has managed to escape judicial
interpretation. Second, situations such as Paquette have used common law
defences when the Code does not specifically deal with the situation. In that
case, although there was a statutory provision, section 17 of the Code, deal-
ing with the defence of duress, the provision was not applicable where the
accused was charged as a party to murder rather than as a principal. 188 It
would not be possible, particularly given the clear wording of subsection
7(3), to simply substitute a new common law test for a Code defence where
the latter clearly covered the fact situation before the court. The common
law defence could fill a vacuum if one existed, for example, if it was de-
termined that the Code provisions did not apply to the defence of strangers.
In that event, it is to be hoped that mistakes in both instances would be
evaluated on the same basis. It is quite unlikely that the courts would allow
a subjective evaluation of mistake in the defence of strangers but require a
reasonable mistake when protecting members of one’s family or others de-
termined to be under the protection of the accused.

Professor Colvin has suggested an alternative analysis which would
allow a subjective assessment of mistake, namely, classification of the de-
fence as an excuse rather than a justification:

In essence, Dickson J. [in R. v. Gee and R. v. Faid] is contending (i) that the
statutory defences of justification represent a complete codification of the law
governing the use of defensive force, with no scope for supplementary judicial
creativity under s. 7(3), and (ii) that the recognition of a partial defence for an
honest albeit unreasonable belief about the appropriate degree of force would,
in any event, be inconsistent with general principles of criminal culpability.

188Colvin, supra, note 47 at 164-65:

Under the authority of this provision [s. 7(3)], the Supreme Court has recognized
necessity as an excusing defence [Perka v. R., [1984] 2 S.C.R. 233] and has affirmed
the preservation of some parts of the excusing defence of duress at common law
[Paquette v. R., [1977] 2 S.C.R. 189]. There have also been suggestions that since
the common law is open to continuing development, the provision may permit the
creation of wholly new defences [for example, entrapment: Kirzner v. R., [1978] 2
S.C.R. 487 and Amato v. R., [1982] 2 S.C.R. 418]. It seems, however, that although
the Supreme Court is willing to view s. 7(3) as a source of excusing defences, it is
reluctant to use the provision in any way which might disturb the scheme of the
Code defences ofjustification. In Perka v. R., where necessity was recognized as an
excusing but not a justifying defence, Dickson J. drew attention to the coverage of
justification under the Code and suggested that any extension would be an inap-
propriate exercise of the judicial function.

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[Vol. 33

These two arguments may be related. Dickson J. has referred to the proposed
defence as one of “partial justification”. There is, of course, something odd
about the idea of partial justification. Either conduct is justified or it is not.
But the claim for a defence on the ground of an honest albeit unreasonable
mistake is not a plea of justification at all: it is a plea of excuse. The error of
Dickson J. on this point makes his conclusion about the exhaustiveness of the
statutory defences almost inevitable. Given the detailed coverage of circum-
stances of justification in the Code, the inference that supplementary judicial
creativity is excluded is very strong. Nevertheless, the codification is confined
to matters ofjustification. The Code does not speak at all to matters of excuse
in the use of defensive force.

Gee and Faid were decided before the Supreme Court gave full recognition to
the distinction between “justifications” and “excuses” in Perka. In light of the
analysis in Perka, it can be argued that the issue raised by Gee and Faid merits
re-examination. Whether or not the narrow rulings on excessive force are ap-
proved, the reasons for making these rulings must be judged inadequate., 89
There was an excellent opportunity to discuss all these issues in R. v.
Barkhouse,190 a 1983 decision from the Provincial Court of Nova Scotia.
MacDonald J., without reference to any of the authorities described above,
appears to have expressed support for the unfettered use of common law
defences, including situations of self-defence. In this case, an R.C.M.P. police
constable was attempting to seize the keys from an automobile being driven
by one Donald Findlay. Mr Findlay resisted and a struggle ensued. At this
point, Mr Barkhouse arrived on the scene, responding to a call for help
from Mrs Findlay, and was alleged to have assaulted the constable. On the
charge of assaulting a police officer in the execution of his duty, Barkhouse
was acquitted because the officer was engaged in the illegal seizure of a
motor vehicle and, therefore, was not in the execution of his duty. In regard
to the included offence of common assault, MacDonald J. held that Bark-
house was entitled to rely on section 37 of the Code. In the alternative, if
section 37 did not apply because the Findlays were not persons “under his
protection” the common law defence of third person was available to him:
“However, there is authority for the fact that at common law a rescuer such
as Mr. Barkhouse … could interfere. The authority is spoken of in R. v.
Duffy (1966), 50 Cr. App. R. 68 (U.K.) … .. 191 MacDonald J. also suggests

’89Ibid. at 226-27. At 168 the author explains:

In contrast to a claim for justification, a claim for an excuse concedes the wrong-
fulness of the conduct. Concessions can therefore be made to human frailty. A
defence which is designed to afford an excuse need not be cast as narrowly as it
would be if it were designed to afford a justification. Moreover, the defence might
be permitted where there has been a mistake of fact without the need for the mistake
to have been reasonable. Culpable mistakes can be excused even though they cannot
be justified.

190Supra, note 113.
1’9 Ibid. at 399, MacDonald J.

1988]

GOOD SAMARITAN

an objective evaluation, certainly in relation to the amount of force used
and perhaps also in relation to the decision to render assistance as he states
-192
that “what Mr. Barkhouse did was reasonable in the circumstances…

The decision is inadequate in several respects. First, it is unclear
whether a stranger, as in this case, can come under the protection afforded
by section 37 of the Code. The Court simply stated that when Mrs Findlay
called for help “it could well be that the Findlays at that moment came
under Mr. Barkhouse’s protection.”” 93 Second, it is not clear whether the
Court viewed the common law defence as a substitute for the statutory
provision or as an adjunct capable of filling a vacuum in the legislation.
MacDonald J. states: “It is of course trite law that in Canada under s. 7(3)
of the Criminal Code an accused in a criminal proceeding may invoke any
common law defence.”‘ 94 As we have seen, the question is somewhat more
complicated than that. Finally, the Court provides no hint as to whether
the assessment of mistake differs between the statutory and common law
defences. Thus, in terms of precedent value, the decision is just as well
ignored, which appears to be the case to this point in time.

IV. Proposals for Reform

In 1982, Professor Stuart stated that the time had come to abandon
the artificial and unnecessary distinctions in the self-defence provisions of
the Code, for example, situations of fatal and non-fatal self-defence, defence
of those under one’s protection and defence of strangers. He suggested the
following provision:

Everyone is justified in using force to protect himself or anybody else against
unlawful force, provided that the force used was reasonable, having regard to
all the circumstances including the harm apprehended, and whether the force
used was proportionate to the harm apprehended.1 95

In that same year the Law Reform Commission of Canada proposed

its own draft legislation:

13.(l) Subject to the provisions of this section, every one is justified in using
no more force than necessary to protect himself or any one under his protection
against unlawful force, provided that the force used is proportionate to the
harm apprehended from the unlawful force.

192Ibid, at 400.
19Ibid at 399.
194Ibid. at 399-400.
195D. Stuart, Canadian Criminal Law (Toronto: Carswell, 1982) at 402. He adds: “This
defence would be available against any unlawful law enforcement. There cannot be a right of
self-defence against lawful force such as a lawful arrest even if an arrestee is innocent. On the
other hand there should be a right of self-defence against any illegal force.”

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[Vol. 33

(2) No one is justified in using force which he knows is likely to cause death
or serious bodily harm in defending himself against acts, including illegal arrest,
done in good faith for the enforcement or administration of law. 196
This proposal recognized the distinction between excuses and justifi-
cations, 197 managed to combine subjective and objective tests, and failed
to provide clear authority for the defence of strangers:

The general rule justifies the use of necessary force against unlawful force
provided the former is proportionate to the harm apprehended from the latter.
This raises three questions: (1) What harm did the accused apprehend? This
is a subjective question to be determined on the evidence concerning his ap-
preciation of the situation. (2) Was the use of force necessary? This is an
objective question to be determined on the evidence whether there were other
measures short of force which would have sufficed. (3) Was the force used
proportionate? This is also an objective question but one to be determined by
reference not only to the accused’s actual apprehension, but also to general
social attitudes concerning the degree of force acceptable in any given situation.
Deadly force, for example, is an acceptable response to an attack endangering
life but not to a mere trivial assault.

The words “any one under his protection” extend the right to acts done
in protection of one’s spouse, family and others whom one has an obligation
to defend. 198
The proposal did provide that common law justifications, such as self-

defence and the defence of others, would continue to be available. 199

After extensive consultation and a number of interim proposals, the
Law Reform Commission returned, in 1986, with an Act to revise and codify

196Criminal Law: The General Part – Liability and Defences, supra, note 52 at 101-102.
197G. Garneau, supra, note 150 at 122:

First, it is necessary to briefly outline the general scheme of defences as presented
in the Working Paper. The classifications are as follows: (I) exemptions (immaturity
and mental disorder); (2) excuses (intoxication, automatism, physical compulsion
and impossibility, mistake or ignorance of fact, mistake or ignorance of law and
duress and necessity); and (3) justifications (self-defence, protection of property,
advancement ofjustice and lawful assistance). Defences of special application (e.g.,
provocation), defences which deny one or more elements of the charge (e.g., alibi)
and procedural defences (e.g., autrefois acquit) are either dealt with elsewhere or
apparently require no special treatment in the General Part.

“‘8Criminal Law: The General Part – Liability and Defences, supra, note 52 at 102-103.
Interestingly, under the proposed defence of mistake of fact, the accused “must be judged on
the facts as he perceived them.” See at 71-75.

“99Sub-section 2(3) of the draft legislation found in Criminal Law: The General Part –

Liability and Defences, ibid. at 21 reads as follows:

2.(3) Notwithstanding that a person’s conduct may come within the definition of
an offence, he is not criminally liable for that offence if he has an exemption, excuse
or justification allowed by law.

1988]

GOOD SAMARITAN

the criminal law. This proposal differs in several important respects from
the earlier work. First, the Draft Code does not contain a provision equiv-
alent to subsection 7(3) of the current Code allowing the supplemental use
of common law defences. Although the Draft Code aims to include all
exemptions, excuses and justifications in the interest of comprehensiveness,
there is a recognition that “it remains open to the courts to develop other
defences insofar as is required by the reference to ‘principles of fundamental
justice’ in section 7 of the Charter.”‘ 200 This apparently sounds the death
knell for the common law defences in this country. The absence of any
reference to these defences in the new proposed Code quite likely precludes
their use under standard rules of statutory interpretation –
“expressio unius
the expression of one thing is the exclusion of
est exclusio alterius” –
another. If the courts fail to take up the call to use the Charter, an accused
who wishes to argue the defence of others will find himself confined to the
four comers of the statutory justification.

This concern is tempered by the considerable revision to the statutory
provisions themselves. For example, a person is no longer limited to pro-
tecting “anyone under his protection”. Rather, a person would be entitled
to protect any other person regardless of the relationship:

3(10) Defence of the Person.

(a) General Rule. No one is liable if he acted as he did to protect himself or
another person against unlawful force by using such force as was reasonably
necessary to avoid the harm and hurt apprehended.

(b) Exception: Law Enforcement. This clause does not apply to anyone who
uses force against a person reasonably identifiable as a peace officer executing
a warrant of arrest or anyone present, acting under his authority.201

The provision authorizes the use of reasonably necessary force and
therefore establishes an objective test. Because the defence is restricted to
cases of unlawful force no force may lawfully be used to repel lawful force
such as lawful arrest or justifiable measures of self-defence. 202
20ORecodifying Criminal Law, supra, note 52 at 25. Section 7 of the Canadian Charter of

Rights and Freedoms states:

7. Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental
justice.

20 Recodifying Criminal Law, ibid. at 34. See the legislatively drafted version, Appendix A,
2021bid. In regard to the exception to the provision the Commission states, at 34:

s. 21.

Clause 3(10)(b) excludes force altogether against arrest, made in good faith but
in fact under a defective warrant, by a person who is clearly a peace officer. The
policy is to restrict violence, to render it as far as possible a state monopoly and
to make the arrestee submit at the time and have the matter sorted out later by
authority.

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[Vol. 33

The proposed Code also contains a “crime prevention” provision. Un-
der this section a person would not be liable for using such force as is
reasonably necessary to prevent a crime likely to cause death, serious harm
to the person or serious damage to property, to effect an arrest authorized
by law or to perform an act required or authorized by or under federal or
provincial statute. The protection would not apply to anyone who purposely
kills or seriously harms another person except where reasonably necessary
to arrest, to prevent the escape of, or to recapture one who is dangerous to
life.20 3 Again, the proposal clearly envisages an objective evaluation.

Any concern that the proposed provisions dealing with self-defence and
prevention of crime will introduce a “purely objective” requirement of strict
proportionality have been met by a separate provision entitled “mistaken
belief as to defence”. 20 4 That provision adopts a subjective approach in that
it provides that as a general rule no one is liable if on the facts as he believed
them to be he would have had a defence. The section will not apply where
the accused is charged with a crime that can be committed through negli-
gence and the mistaken belief arose through his negligence. The Commission
has explained the operation of and rationale for this provision:

Generally, people should be judged on the facts as they perceive them.
Where they are mistaken as to facts relevant to the culpability requirement,
this result follows from the present law on mens rea … . Where they are mis-
taken as to facts grounding an excuse or justification, the present law is unclear;
but perhaps mistake as to the former will suffice if genuine, and mistake as to
the latter, only if reasonable. If so the law is oddly inconsistent. On the one
hand, justification is a more powerful plea than excuse because it claims that

203Sub-section 3(13) of the proposed Code, ibid. at 36, reads as follows:

3(13) Protection of Persons Acting under Legal Authority.
(a) General Rule. No one is liable for.

(i) using such force as is reasonably necessary to prevent a crime likely to cause

death, serious harm to the person or serious damage to property;

(ii) using such force as is reasonably necessary to effect an arrest authorized by

law; or

(iii) performing an act required or authorized by or under federal or provincial

statute or for using such force as is reasonably necessary to do so.
(b) Exception. This clause does not apply to anyone who purposely kills or seriously
harms another person except where reasonably necessary to arrest, to prevent the
escape of, or to recapture one who is dangerous to life.

See the legislatively drafted version, Appendix A, s. 23.

204Sub-section 3(16) of the proposed Code, ibid. at 39 reads as follows:

3(16) Mistaken Belief As to Defence.
(a) General Rule. No one is liable if on the facts as he believed them he would
have had a defence other than an exemption under clauses 3(4), 3(5) and 3(6).
(b) Exception. This clause does not apply where the accused is charged with a
crime that can be committed through negligence and the mistaken belief arose
through his negligence. See the legislatively drafted version, Appendix A, section
25.

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GOOD SAMARITAN

what was done was not just excusable, but in fact right. On the other hand,
mistaken belief in a justification seems less powerful than belief in an excuse
because the mistake must not only be genuine, but also reasonable.

Accordingly, clause 3(16) provides that in general a mistaken belief that
one is justified or excused negates liability. Mistaken belief in a justification,
then, will operate as an excuse. Mistaken belief in an excuse will itself be an
excuse. Actually, the position under the new Code is simplified by the fact that
defences are not rigidly separated into justifications and excuses. In addition,
by virtue of this clause together with clause 3(13)(a)(iii), a mistake as to a
specific defence provided in the Special Part of this Code or by the statute
creating the crime will also operate as an excuse.

Where the mistake arises through the accused’s criminal negligence and
the offence charged is one that can be committed by criminal negligence, then
under clause 3(16)(b) he can be convicted of negligent commission of that
crime. To this extent an unreasonable belief is no defence. 205

V. Punishing the Bad Samaritan

In addition to these reforms, the federal Law Reform Commission has
followed up on its earlier work 20 6 and proposed the creation of a new crime,
“failure to rescue”. Under this proposal there will be an offence for failure
to take reasonable steps to assist another person perceived to be in im-
mediate danger of death or serious harm. The provision will not apply where
the person cannot take reasonable steps to assist without risk of death or
serious harm to himself or another person. 207

The imposition of a duty to render assistance is not only long overdue,
it is a necessary and important companion to the provisions which deal
with self-defence and the prevention of crime. This approach will not only
allow people to intervene on behalf of others but will compel them to do
so. Obviously if we require people to render assistance this should clear up
any uncertainty as to whether they are authorized to act.

205lbid. at 39.
206Law Reform Commission of Canada, Omissions, Negligence and Endangering (Working

Paper No. 46) (Ottawa: Supply and Services Canada, 1985) at 17-20.

207Sub-section 10(2) of the Code proposed in Recodifying Criminal Law, supra, note 52 at

64 reads as follows:

10(2) Failure to Rescue.
(a) General Rule. Everyone commits a crime who, perceiving another person in
immediate danger of death or serious harm, does not take reasonable steps to assist
him.
(b) Exception. Clause 10(2)(a) does not apply where the person cannot take rea-
sonable steps to assist without risk of death or serious harm to himself or another
person, or where he has some other valid reason for not doing so. See the legis-
latively drafted version, Appendix A, section 54.

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The debate as to whether an individual should have a legal obligation
to save others from bodily harm has been ongoing in the United States, and
in Canada to a lesser extent, since the early part of this century.20 8 Couching
their policy decisions in the language of misfeasance and nonfeasance the
common law courts have resisted efforts to impose affirmative duties of
action. As a general rule, an individual has no duty to aid another in danger
if he did not create the perilous situation. This doctrine of “bad samari-
tanism” is a prevalent feature of the Anglo-American legal systems. There
are, however, more than twenty countries where the criminal law punishes
persons who, without incurring serious risks themselves, were able to help
another person in grave peril, and who failed to give such help. 209 Even in
these jurisdictions the concern of the criminal law with assisting others is
a relatively recent development:

208See J.B. Ames, “Law and Morals” (1908-09) 22 Harv. L. Rev. 97; EH. Bohlen, “The Moral
Duty to Aid Others as a Basis of Tort Liability” (1908) 56 U. Pa L. Rev. 217. Recent incidents
such as the Kitty Genovese murder and the New Bedford, Massachusetts pool table rape have
produced a flood of new articles. In “Bad Samaritanism and the Duty to Render Aid: A
Proposal” (1985) 19 U. Mich. J.L. Ref. 315 at 315 n. 3,4, M.K. Osbeck describes these incidents
as follows:

In this infamous case, a knife-wielding assailant attacked a young woman named
Kitty Genovese three separate times over a period of thirty five minutes on her
own residential street. Thirty-eight of Genovese’s neighbours witnessed the attacks,
but no one helped her or even called the police. Only after the victim’s death did
one witness bother to summon the police, who arrived on the scene within two
minutes of the call. N.Y. Times, Mar. 27, 1964, at Al.

Attackers repeatedly raped a woman on the pool table of a local tavern in New
Bedford, Massachusetts, while fifteen patrons watched. Not one of these witnesses
summoned the police during the entire seventy-five minute episode, and some, in
fact, cheered the rapists on, encouraging them to continue. Newsweek, Mar. 21,
1983, at 25.

See also FJ.M. Feldbrugge, “Good and Bad Samaritans, A Comparative Survey of Criminal
Law Provisions Concerning Failure to Rescue” (1966) 14 Am. J. Comp. L. 630; C.E. Radcliffe,
“A Duty to Rescue: The Good, the Bad and the Indifferent – The Bystander’s Dilemma”
(1986) 13 Pepperdine L. Rev. 387; T. Rodriguez, “I Am My Brother’s Keeper. A Trend Towards
Imposing A General Duty Upon A Bystander To Assist A Person In Danger” (1985) 26 B.C.L.
Rev. 497; A. Rudzinski, “The Duty to Rescue: A Comparative Analysis” in J. Ratcliffe, ed.,
The Good Samaritan and the Law (Magnolia, Minn.: Peter Smith, 1966); T.M. Benditt, “Li-
ability for Failing To Rescue” (1982) Law and Phil. 391; A. D’Amato, “The ‘Bad Samaritan’
Paradigm” (1975) 70 Nw. U.L. Rev. 798; J. Kleinig, “Good Samaritanism” (1976) 5 Phil. and
Pub. Aff. 382; A.M. Linden, “Rescuers and Good Samaritans” (1971) 34 Mod. L.Rev. 241;
W.M. Rudolph, “The Duty to Act: A Proposed Rule” (1965) 44 Neb. L. Rev. 499; E.J. Weinrib,
“The Case for a Duty to Rescue” (1980) 90 Yale L.J. 247; A.D. Woozley, “A Duty to Rescue:
Some Thoughts on Criminal Liability” (1983) 69 Va. L. Rev. 1273.

209Feldbrugge, ibid. at 652. In an Appendix, the author has provided legislation from Albania,
Belgium, Bulgaria, Czechoslavakia, Denmark, Ethiopia, Finland, France, Germany, Greece,
Hungary, Iceland, Italy, Netherlands, Norway, Poland, Rumania, Russia, Spain, Turkey,
Ukraine, and Yugoslavia.

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GOOD SAMARITAN

In ancient Egyptian and Indian law there are provisions which order the pun-
ishment of those who fail to aid persons in danger. However, Roman law and
scholastic thought were unfavorably inclined toward legislation of this nature.
It is only in the nineteenth century that a similar provision reappears, in the
Russian Criminal Code of 1845, followed by the criminal codes of Tuscany
(1853), the Netherlands (1881), and Italy (the Zanardelli Code of 1889). Other
-codes in the first half of the twentieth century also conformed to this pattern;
but it has been only since World War II that almost every new criminal code
contains a failure-to-rescue provision.210

Article 63 of the French Penal Code is typical of existing provisions

and has been suggested as a model for North American legislators:

Sera puni … quiconque s’abstient volontairement de porter A une personne en
peril l’assistance que, sans risque pour lui ni pour les tiers, il pouvait lui preter,
soit par son action personnelle, soit en provoquant un secours.21′

Two American states, Vermont and Minnesota, have enacted such legisla-
tion, making it a misdemeanor for people who witness others in serious
danger not to render reasonable assistance, providing they can do so without
endangering themselves. Two other states, Rhode Island and Massachusetts,
require those who witness certain violent crimes to notify the police.212 One
American writer, Mark Osbeck, finds the Rhode Island statute especially
puzzling: “It imposes the duty only when the witness observes an actual or
attempted first-degree sexual assault … . Why such a duty should apply
when someone witnesses a rape but not, for example, a murder, is difficult
to understand. ‘ 213 He argues that legislators should enact legislation which
imposes a “duty to notify” rather than a duty to rescue. This approach
would overcome many of the objections to affirmative duties to act identified
below. In Osbeck’s proposed model statute the duty arises in all cases in
which people witness others in danger:

Duty to Notify

2IOIbid. at 630-31. At 633, the author notes that the present tendency of the European leg-
islators is to extend the failure to rescue provisions to situations in addition to danger to life.
In many jurisdictions the obligation to render assistance includes situations of potential serious
injury and, in some cases, all injuries and danger to health.

21’Code penal (Paris: Jurisprudence g6n6rale Dalloz, 1987-88). See also Rodriguez, supra,

note 208 at 519-22. At 520, Rodriguez provides the following translation of art. 63:

Whoever abstains voluntarily from giving such aid to a person in peril that he
would have been able to give him without risk to himself or third persons by his
personal action or by calling help … shall be punished ….

For a more complete translation of article 63, see D. Stuart & R.J. Delisle, Learning Criminal
Law, 2d ed. (Toronto: Carswell, 1986) at 183.

212The provisions are cited in Osbeck, supra, note 208 at 317-18.
213Ibid. at 318.

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[Vol. 33

Sec. I. Any person who knows or has reason to know that another person is
in serious physical danger, and who witnesses this person’s predicament, shall
notify a police agency of the danger as soon as reasonably possible, unless:

(a) the person witnessing the predicament knows that a police agency has
already been notified; or
(b) the person witnessing the predicament is unable to notify a police agency
with a reasonable effort; or
(c) the endangered person appears able to notify a policy agency without
outside help.

Sec. 2. A violation of Section 1 is a misdemeanor punishable by a fine of not
more than $500, imprisonment for a term not to exceed 30 days, or both.

Sec. 3. Proof of a violation of this statute does not constitute grounds for
imposing civil liability on persons who violate the statute.214

Although, as stated earlier, there is currently no general duty to render
assistance, the common law has created a number of exceptions to this rule
apart from the statutory enactments described above. First, courts have
imposed a duty to render aid upon parties who share special relationships,
for example, parent and child, innkeeper and guest, employer and employee.
Second, courts have recognized that individuals bound by certain contrac-
tual agreements have a duty to render aid, for example, the duty imposed
on a paid lifeguard or gatekeeper. Third, courts have imposed a duty to
rescue upon those who put others in danger through ordinary negligence,
for example, a person who negligently starts a fire has a duty to provide
reasonable assistance to persons threatened by the fire. Fourth, a person
who begins to render assistance to another has a duty to provide continued
assistance if the rescuer’s termination of the rescue attempt would put the
victim in a worse position than he was in prior to the rescue attempt. For
example, if someone volunteers to care for an infant and then fails to do
so adequately and the child dies, that person will be liable for the child’s
death. The rationale for this rule is that a potential rescuer’s aborted rescue
attempt discourages others from helping who could otherwise save the vic-

2141bid. at 343. There have been many other proposed models. For an example of a model
which requires a person to act rather than simply report, see Rodriguez, supra, note 208 at
527. In that article, at 498, the author notes that in California the Fifth District Court of
Appeals has modified the common law rule that a bystander owes no duty to a stranger. In
Soldanov. O’Daniels, 141 Cal. App. 3d 443, 190 Cal. Rptr. 310 (Dist. Ct. App. 1983), the Court
held that a business establishment has a legal duty to let bystanders use its telephone in an
emergency. At 515-18, the author provides a discussion of this case and the decision of Tarasoff
v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal.
1976), where the Supreme Court of California held that psychotherapists owe an affirmative
duty of reasonable care to third parties who are threatened by patients under the psychother-
apist’s treatment.

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GOOD SAMARITAN

tim. Finally, courts have imposed certain duties to warn or rescue on land-
owners; thus, the development of the law of occupier’s liability.215

Further, in many jurisdictions, a duty to aid others, usually in specific
situations, has been imposed by statute. For example, most American and
Canadian jurisdictions have enacted statutory provisions which require a
driver involved in an accident to stop and render assistance to any injured
person, even if the driver was not at fault.216 In some situations people will
be required to assist the police.217 Another example is provided by statutes
which require individuals to report incidents of child abuse. 21 8 In terms of
imposing a general duty to render assistance, section 2 of the Quebec Charter
of Human Rights and Freedoms comes much more directly to the point:

2. Every human being whose life is in peril has a right to assistance. Every
person must come to the aid of anyone whose life is in peril either personally
or calling for aid, by giving him the necessary and immediate physical assist-
ance, unless it involves danger to himself or a third person, or he has another
valid reason. 219

Although such provincial legislation does not itself create a criminal offence,
“it may render the causing of harm by its breach criminal: failure to provide
necessaries to a dying common law ‘spouse’ resulted in a homicide con-
viction in the Quebec case of R. v. Fortier –
a result impossible in any of

215Osbeck, supra, note 208 at 322-23. See also Rodriguez, supra, note 208 at 503-06.
216See Rodriguez, ibid. at 507-508, and Osbeck, ibid. at 323. For example, para. 174(l)(b) of

the Ontario Highway Traffic Act, R.S.O. 1980, c. 198 reads as follows:

174.(1) Where an accident occurs on a highway, every person in charge of a vehicle
… that is directly or indirectly involved in the accident shall,

(b) render all possible assistance.

217Sub-section 118(b) of the Criminal Code, supra, note 1 reads as follows:

118. Every one who

(b) omits, without reasonable excuse, to assist a public officer or peace officer in
the execution of his duty in arresting a person or in preserving the peace, after
having reasonable notice that he is required to do so, is guilty of

(d) an indictable offence and is liable to imprisonment for two years, or
(e) an offence punishable on summary conviction.

218For example, sub-s. 49(l) of the Child Welfare Act, R.S.O 1980, c. 66 reads as follows:

49.(1) Every person who has information of the abandonment, desertion or need
for protection of a child or the infliction of abuse upon a child shall forthwith report
the information to a society.

See s. 68 of the Child and Family Services Act, S.O. 1984, c. 55. Professors Stuart and Delisle
have noted that under the Ontario legislation it is only an offence for “every person who
performs professional or official duties with respect to a child” to fail to report suspected abuse.
See Stuart & Delisle, supra, note 211 at 183. For American legislation in this area, see Rodriguez,
supra, note 211 at 508.

2t9Charter of Human Rights and Freedoms, R.S.Q. c. C-12.

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[Vol. 33

the common law provinces. ‘220 Such use of provincial statutes creates a
totally untenable situation, namely, that identical conduct could result in a
criminal conviction in one province but not in another.

In addition to statutes which impose a duty to act there have been other
developments which encourage rescue. For example, many jurisdictions
have enacted “good samaritan” legislation which protects those who seek
to offer assistance from subsequent litigation except in cases of gross neg-
ligence. 221 Similarly, criminal injuries compensation schemes indemnify in-
dividuals who are personally injured or suffer property damage in aiding
the prevention of a crime or in the apprehension of a criminal.2 22 In a
-20Omissions, Negligence and Endangering, supra, note 206 at 18. The Report provides the

following citation: R. v. Fortier (17 November 1980), Longueil 500-01-050-805 (C.S.).

Section 49 of the Quebec Charter of Human Rights and Freedoms, ibid., makes provision

for compensation and the awarding of exemplary damages.

22’For example, s. 2 of the Emergency MedicalAid Act, R.S.A. 1980, c. E-9 reads as follows:

2. If, in respect of a person who is ill, injured or unconscious as the result of an
accident or other emergency,
(a) a physician, registered health discipline member, or registered nurse voluntarily
and without expectation of compensation or reward renders emergency medical
services or first aid assistance and the services or assistance are not rendered at a
hospital or other place having adequate medical facilities and equipment, or
(b) a person other than a person mentioned in clause (a) voluntarily renders emer-
gency first aid assistance and that assistance is rendered at the immediate scene
of the accident or emergency, the physician, registered health discipline member,
registered nurse or other person is not liable for damages for injuries to or the
death of that person alleged to have been caused by an act or omission on his part
in rendering the medical services or first aid assistance, unless it is established that
the injuries or death were caused by gross negligence on his part.

Professor Linden notes that Nova Scotia has similar legislation but private member bills
introduced in Ontario have died on the order paper see C.A. Wright, A.M. Linden & L. Klar,
Canadian Tort Law, 8th ed. (Toronto: Butterworths, 1985) at 8-55. For American legislation,
see Rodriguez, supra, note 208 at 509-10.
222For example, s. 5 of the Compensation for Victims of Crime Act, R.S.O. 1980, c. 82 reads

as follows:

5. Where any person is injured or killed by any act or omission in Ontario of any
other person occurring in or resulting from,
(a) the commission of a crime of violence constituting an offence against the
Criminal Code… ;
(b) lawfully arresting or attempting to arrest an offender or suspected offender for
an offence against a person other than the applicant or his dependant or against
such person’s property, or assisting a peace officer in executing his law enforcement
duties; or
(c) preventing or attempting to prevent the commission of an offence or suspected
offence against a person other than the applicant or his dependant or against such
person’s property,
the Board, on application therefore, may make an order that it, in its discretion
exercised in accordance with this Act, considers proper for the payment of com-
pensation ….

For American legislation, see Rodriguez, supra, note 208 at 510.

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GOOD SAMARITAN

comment on the legislation in Ontario, one Court stated that it “gave an
affirmative answer to the question –
‘Am I my brother’s keeper?’, and by
implication considered it meritorious to aid one’s neighbour. ‘223

A whole array of arguments have been constructed both for and against
the creation of a general duty to render assistance, or at least notify au-
thorities that someone needs assistance. In a recent article, Mark Osbeck
has succinctly summarized the American writing in this area.224 In sup-
porting a duty to notify he argues that such a duty would have a deterrent
effect on potential wrongdoers. The duty to notify would also prevent, or
at least mitigate, some potential harm by facilitating the early arrival of the
police. In addition to its preventive value, he also argues that this duty
would serve the important function of formally declaring society’s disap-
proval of “bad samaritanism”. Finally, Osbeck foresees an increase in al-
truism, that is, imposition of a duty may inspire people to go beyond the
minimum requirements of the duty and may help change people’s attitudes
about “getting involved”. On the other side of the ledger there are both
theoretical and practical objections to a general duty to render assistance
or notify the authorities:

Four major theoretical arguments have been raised in the legal literature
against the duty to rescue. One asserts that omissions cannot give rise to liability
because they do not cause harm. Another asserts that all non-contractual po-
sitive duties the state imposes are illegitimate. A third asserts that the duty to
rescue is a type of forced altruism and that forced altruism is wrong. And the
fourth holds that the duty to rescue imposes an undue burden on individual
liberty.

225

The author concludes that although the last of these arguments may have
some force against the duty to rescue, none of the arguments presents a
problem for the duty to notify.226

Legal commentators have also raised several arguments designed to
show that the duty to rescue would be impractical. First, it has been argued
that it would be impossible to draw a line between the duty to rescue and
other positive duties of which most people would not approve. For example,
would this obligation include a duty to give money on demand to starving
beggars? Second, the duty to rescue may be “non-verifiable” and therefore
undesirable. The concern here is the inability of individuals to know in a
given situation whether the statute requires them to act or not. A third
argument claims that the duty to rescue would be unenforceable. The main
thrust of this objection is that the police cannot identify all those who may

22 3Gambriell v. Caparelli, supra, note 128 at 209, Carter J.
224Osbeck, supra, note 208 at 323-42.
22SIbid. at 328.
2261bid. For elaboration, analysis and criticism of these theoretical arguments, see at 328-36.

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witness a serious accident or violent attack and then fail to report it or
actively intervene.227

Without question, the most interesting argument advanced by oppo-
nents of a general duty to render assistance is the “faker argument” which
asserts that criminals may feign serious injury to lure would-be rescuers
into a trap to rob them. While arguing that a duty to notify statute would
avoid this problem, Osbeck is prepared to admit that a duty to rescue statute
“seems to encourage such criminal behaviour by making it easier for those
feigning injury to entice would-be rescuers into their trap.”‘ 28

In order to avoid most of these concerns, both theoretical and practical,
the failure to rescue provision of the proposed new Criminal Code 229 should
be re-written to provide that, in appropriate circumstances, notification of
authorities will suffice. While the existing phrase “does not take reasonable
steps to assist him” would allow simple notification in many cases, the
language should be more specific. The remaining concerns outlined above
are far outweighed by the need for such a provision. This revision, in com-
bination with the proposals for self-defence 230 and mistake,2 31 will effect a
dramatic change in the lot of the good samaritan. Individuals will not simply
be authorized, they will be required to help strangers. Further, mistakes
made during the course of these efforts will be assessed, not objectively, but
rather on the basis of that person’s state of mind and perception of events.

Conclusion

There are both common law and statutory bases for the defence of
others. Despite some suggestions to the contrary I have argued that both
are available for the defence of an accused person in Canada. As demon-
strated, problems have arisen because there are considerable differences
between the scope and application of the defences.

At common law, a person may intervene in defence of another, including
total strangers. Although there are no statutory provisions in Canada which
specifically authorize the defence of strangers, there are a number of sta-

2-71bid. at 336-42. While a thorough discussion of these issues is beyond the scope of this
work, readers are referred to Osbeck who has provided a good analysis of these arguments,
complete with references to American authorities. For an excellent discussion of the pros and
cons of the arguments both for and against a general duty to rescue, see B. Lipkin, “Beyond
Good Samaritans and Moral Monsters: An Individualistic Justification of the General Legal
Duty to Rescue” (1983) 31 U.C.L.A. L. Rev. 252. See also Rodriguez, supra, note 208 at 500-
502.

228 bid. at 342.
2-9Supra, note 207.
23Supra, note 201.
231Supra, note 204.

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tutory provisions which assist the good samaritan. Some of these provisions,
such as those which provide the power to arrest or prevent breaches of the
peace, place no restriction on whose person may be defended. However,
other provisions restrict assistance to those persons “under your protection”.
Arguably, this would not include strangers. Also, in dealing with the statutory
provisions, some courts have determined that persons may, in appropriate
circumstances, cause death or grievous bodily harm in defence of themselves
but not in defence of others. The common law does not appear to make
this distinction.

Another divergence between the common law and statutory bases for
the defence of others involves the doctrine of mistake of fact. There are
many cases where good samaritans have been mistaken as to the need to
intervene and the amount of force required for effective intervention. In
most cases, the common law subjectively evaluates one mistaken belief (the
need for intervention) but objectively evaluates the other (a mistaken belief
in the extent of force required). With regard to the common law defence of
necessity there is an argument to be made that the defence may be grounded
upon honest mistakes of fact whether or not they are reasonable.

In some instances, courts basing the defence of others on statutory
provisions have taken the same approach to the question of mistake as
those decisions which relied on the defence at common law. However, for
the most part, while the courts continue to pay lip service to the concept
of subjective fault, and while the test is not “purely” objective any more
than it is “purely” subjective, an objective evaluation is being used. There
must be an honest and reasonable belief that intervention is required and
the force used to achieve that result must be reasonably necessary. A simple
honest belief in the necessity of defensive measures or the extent of force
required will not be sufficient to found the defence. The lingering distinction
between justifications and excuses has further served to cloud the issue.

In order to overcome deficiencies in draftsmanship, the courts have
combined statutory provisions. For example, several courts have suggested
that section 37 of the Code is simply an extension of section 34. The courts
have also created confusion by combining aspects of the common law and
statutory defences. Clearly, where the statutory provisions apply, they will
take precedence. However, the common law defences could fill a vacuum
if one existed, for example, if it were determined that the Code provisions
did not apply to the defence of strangers. The obvious concern is that the
courts may be using different tests for mistake of fact depending on whether
the defence falls under the statutory provisions or the common law.

The proposed solution to this problem is two-fold. First, a statutory
provision should be enacted which specifically authorizes intervention on

814

McGILL LAW JOURNAL

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behalf of others, including total strangers. Such provision, or a companion
section, should contain a clear statement on evaluation of mistakes made
during the defence of another. Second, this would be an appropriate time
for Canada to move toward a system which not only protects good samar-
itans but sees fit to punish the bad samaritans among us. In this regard,
legislation should be enacted which imposes, at the very least, a criminally
sanctioned affirmative duty to notify authorities when people need assist-
ance. These proposals should be welcomed by good samaritans and the
citizenry as a whole. Their enactment would represent real progress toward
a more rational and civilized system of criminal justice.