In the last episode we discussed the Criminal Code sections pertaining to the excessive use of force. This section recognizes that force may be justifiably used in certain circumstances but even so, must be used reasonably, proportionally, and when necessary. Sections 27 and 27.1 continue this conversation of the appropriate use of force in providing justification, in certain circumstances, for those who use force to prevent the commission of an offence. Section 27 provides a general justification while section 27.1, being a new amendment to the Code from 2004, provides a specific justification relating to acts committed on board an aircraft.
What must be remembered when we discuss these Code sections is that the elements of an offence resulting from the force used are proven. In other words, if the act is an intentional application of force without consent and the intention to commit this act is present, all of which the Crown can prove beyond a reasonable doubt, then an assault has occurred and but for the justification the person so applying the force would be convicted of a criminal offence. This is in line with the legal defences known as justifications recognized by common law and our criminal law through the Code. We will discuss the concept of self-defence as we move through these sections, but we must recognize we are not suggesting the essential elements of the crime cannot be proven but that the person’s actions are justified on the basis of a recognized legal defence.
We shall first look at section 27, which reads as follows:
Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
This section has basically remained the same since the 1892 Criminal Code. It contains the essentials of statutory and common law concepts of self-defence by requiring the force used to be no more than is reasonably necessary.
However, the section, under subsection (a), restricts the reasonably necessary use of force to the prevention of the commission of an offence for which the person could have been arrested without a warrant and only if that person’s actions would “likely” cause “immediate and serious injury” to person or property. The Code has a number of sections, which pertain to the arrest of a person with or without a warrant. Most notably, section 494 outlines the circumstances where any person may arrest another for an offence without a warrant and section 495 outlines when a peace officer may arrest a person without a warrant. As section 27 refers to “every one,” it covers both an arrest by a citizen and an arrest by a peace officer. Section 494, which I do not want to discuss in detail as yet, was recently amended as a result of some high profile lobbying by storeowners, who wanted the ability to pursue an alleged shoplifter for the purpose of a citizen arrest. Prior to the amendments such arrest was predicated on the person immediately arresting a person found committing an offence in relation to their property.
Although the arrest provisions in the Code are circuitous, in the end the only people who should be arrested without a warrant are those charged with more serious indictable offences or those who may be charged with less serious offences but will not show up for trial unless arrested or there is a public interest in arresting the accused. The public interest would therefore require an arrest where the accused won’t identify him or herself or if the offence might continue if no arrest is effected such as in an impaired driving offence. Also an accused may be arrested without a warrant where evidence will be destroyed or tampered with should the accused not be in custody. Ultimately, even after arrest, the accused can still be released by appearance notice or summons.
Even if the offence is one for which the person could be arrested without a warrant, the force used to prevent the commission of the offence cannot be justified unless the accused’s actions would “likely” cause immediate and serious injury to person or property. There is no Criminal Code definition of “serious injury.” According to the dictionary meaning, injury means any “harm or damage.” “Serious” is defined as a significant event with possible dangerous results. In accordance with the 1991 Supreme Court of Canada McCraw case, “serious bodily harm” was defined as “any hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the complainant.” Section 27 refers not only to serious injury of the person but also of property. Also, the serious injury need not have occurred but need only “likely” to occur, meaning that the serious outcome may be the likely result of the actions as opposed to the certain results of the action.
Subsection (b) of section 27 justifies the use of reasonably necessary force when the person using such force believes, on reasonable grounds, the suspect is doing acts that would lead to the commission of an offence in the circumstances as outlined under 27(a). In other words, the person using force has an honest and reasonable belief that the acts fulfill the criteria as outlined under (a). As (b) focuses on the person’s belief, force may be justified under this section even if the acts did not amount to a commission of an offence under (a) as long as the subjective belief was reasonable in the circumstances. This assessment is therefore a blend of subjective and objective factors, consistent with the kind of assessments done in determining the applicability of the defence of the person and property provisions under sections 34 and 35.
Section 27.1, is a new addition to the Code and extends the justified use of force to circumstances on board an aircraft. It employs slightly different wording than the broader s. 27. In fact the section, in my view, appears to be a better worded section probably because it is a newly written section. Section 27.1 reads as follows:
(1) Every person on an aircraft in flight is justified in using as much force as is reasonably necessary to prevent the commission of an offence against this Act or another Act of Parliament that the person believes on reasonable grounds, if it were committed, would be likely to cause immediate and serious injury to the aircraft or to any person or property therein.
(2) This section applies in respect of any aircraft in flight in Canadian airspace and in respect of any aircraft registered in Canada in accordance with the regulations made under the Aeronautics Act in flight outside Canadian airspace.
This section clearly sets out a justification for use of force on board an aircraft if it is reasonably necessary force used to prevent a commission of an offence for which the person believes on reasonable grounds would likely cause immediate and serious injury to any person or property within the aircraft. Again the assessment involves subjective and objective determinations, as the person’s subjective belief must be based on reasonable grounds. Also note that the offence need not be one for which the accused must be arrested without a warrant but for any offence either under the Code or any federal statute such as the Aeronautics Act. Subsection (2) specifies that that the acts must occur on any aircraft as long as the aircraft is in Canadian airspace or in international airspace as long as the aircraft is registered in Canada.
Parliamentary debates and backgrounders on section 27.1 suggest that the Liberal government, in power at the time, requested these amendments, not to change the general provisions under s. 27, but to ensure that such protection was extended to the appropriate use of force on a Canadian aircraft “outside of Canadian airspace.”
It should finally be noted that together with this new section 27.1, the government further amended the definition of “flight” under section 7(8) of the Criminal Code to include reference to s. 27.1. An aircraft is “in flight,” in accordance with that definition until the later of the time at which the door is opened for disembarkation or until, where the aircraft makes a forced landing, in circumstances where the owner or operator of the aircraft is not in control, the owner or operator of the aircraft resumes such control of the aircraft. Clearly the definition of “in flight” has been extended to include the use of force to prevent possible terrorist acts relating to the highjacking of an aircraft up until the suspect is overwhelmed and is no longer in control of the aircraft.