Thursday 7 May 2009

The boy had the right to defend himself the way he did

It started out like so many other schoolyard dust-ups – a little shoving, punches traded, some angry, intemperate words, later regretted. But this time, things were different. After the dust at Keswick High School, in Keswick, Ontario settled, the racially charged taunts and a punch thrown by one white schoolboy and the nose-breaking retaliation from his Korean schoolmate were literally heard around the world.

It all began in April 2009 when tempers flared during a speedball game in which the Korean youth tripped a second teen. After the game, the tripped youth snatched the ball out of the first youth's hands. Words were exchanged, shoving ensued and the tripped youth threw the first punch – along with a string of nasty invectives that included ‘fucking Chinese.’ The teen, whose family moved to Canada from Korea five years ago, returned the punch with his weaker left hand, but still broke the other teen's nose. Police with a special school unit were called and, after a cursory investigation, laid a charge of assault causing bodily harm against the Korean youth. School board officials suspended both boys and threatened the charged youth with expulsion. Later, the school officials withdrew the threat of expulsion.

When the story hit local news and then the Internet, a storm of protest from groups and individuals around the world rained down on police and school officials, fueled by outrage that a boy hit with a fist and a racial insult was charged, while the instigator was not.

Six days later, 400 angry Keswick High School students marched to support the teen charged with assault. They said he was only defending himself against the racially motivated slurs, and the other youth had thrown the first punch.

At the time of this writing of this post, the matter has to be decided by the crown attorney as to whether or not the charge against the Korean student should be withdrawn.

I will now explain the law as it relates to assaults in Canada.

Section 265 of the Code states that “A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly; he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.”

In this case I am writing about, the tripped boy who threw the first punch committed an assault on the Korean boy. I should add, merely raising one’s fist in a threatening manner also constitutes a threat in Canada.

Section 34 (1) states that “every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.”

Section 37 (1) states that “every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.”

Neither section 35 nor section 37 of the Criminal Code refers to provocation or justification for the assault. It is not important in this case as to who started the fight or what caused it. The defence of self-defence can therefore be relied on in certain cases, regardless of who instigated or provoked the assault in question.

In R. v. Antley (1963) 42 C.R. 384, [1964] 1 O.R. 545, [1964] 2 C.C.C. 142, at paragraph 11, the Court asserted that it was not necessary for the accused to wait to be assaulted before defending himself. On the contrary, if the accused had reasonable grounds for apprehending an imminent assault from the victim, the accused was justified in using force to defend himself before the victim took action.

In the same decision, the Court added that it was not relevant to determine whether the accused had attempted to obtain assistance from others before using force to defend himself. Where there is an apprehension of an imminent assault, instinctively an individual’s first reaction to a threat would be to attempt to protect himself.
Thus, in this case, it is not necessarily relevant to consider the fact that the tripped boy assaulted the Korean boy first or that the Korean boy did not attempt to call the teachers to help him.

In the case of self-defence, it is important to determine whether the accused truly apprehended an imminent assault. Previous threats, assaults or incidents are used to determine the state of mind of the accused

In this case, considering the shoving going on between the two students and the boy who was tripped during the game by the Korean boy throwing the first punch, it is reasonable to believe that the Korean boy apprehended a second assault. The two incidents constitute a series of events that are impossible to separate in order to consider them in isolation.

In 1971 while I was studying criminal law at the University of Toronto, our professor told us of a case in which two drivers pulled their cars over to the side of the road and each driver got out of their cars and approached one another. One of the drivers (a dentist) raised his fist at the other when he was up close and the other driver reacted by smashing him in the face with his fist. As a result of that blow, the dentist’s jaw was broken and he lost several teeth. The other driver was charged with assault causing bodily harm.

The charge was dismissed. The determination as to whether the force was more than was necessary is a factual determination, taking into account the degree of force used; whether the force was being resisted, and all the surrounding circumstances.

In that particular case, the other driver had no idea as to just how hard the dentist would hit him so he had the right to presume that since the man was a stranger to him and appeared agitated, he may strike him quite hard and perhaps even do more injury to him if he fell down so he hit the dentist as hard as he could so as to incapacitate the dentist so that he would no longer be a threat to him. The court held that he was justified in striking the dentist that hard with that one blow.

Many years ago, I was hired to serve a million-dollar claim on a woman re a traffic accident and after I served her, her husband who was a retired boxer followed me as I was leaving the building and he grabbed me from behind with the purpose of dragging me back to the apartment. I managed to twist myself around so that I was facing him and then I struck him in the face as hard as I could. He immediately fell to the floor unconscious. Some fool police officer charged me with assaulting the man and when the case came up for trial, not only was I acquitted, but the judge said to the man, “You deserved what you got. You had no right to drag the process server back to your apartment. When he struck you, he was defending himself. You are lucky he merely knocked you out.”

It is unfortunate that some police officers and crown attorneys simply don’t understand criminal law. Before I retired from practicing law, I saw many cases thrown out of criminal courts because there simply wasn’t any justification in arresting the defendants and bringing them to trial.

Everyone has a right to defend himself from an attacker. The defence must be reasonable however. Once you have struck another in defence and he either backs away or he is knocked to the ground, unless he continues to assault you, anything you do to him after that in the manner that constitutes a continuation of the assault upon him is excessive and illegal.

What about an assault where the person you are assaulting in defence falls to the ground and he strikes his head on the pavement and dies as a result?

It is important to note that it is the force itself, and not the consequence of the force used, which is justified if the limiting conditions of the statute are met. The only consequences of the application of force in self-defence which are specifically mentioned in the statute are death and grievous bodily harm. Those consequences are relevant only to the extent they are intended. Obviously, if you strike a person who is assaulting you and he accidentally falls to the ground and strikes his head and dies as a result, you cannot be held liable for his death.

If the act that causes death is justified in self defence, the homicide cannot be made culpable by a lawful assault no matter how terrible the consequence may be.

I feel that the prosecutor should withdraw the charge. The parties have made up and to proceed with the charge is merely aggravating a situation that got out of control and has since been resolved to everyone’s satisfaction.

I will let my readers know what the decision of the prosecutor is going to be with respect to withdrawing the charge.

UPDATE: The prosecutor withdrew the charge.

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