Legal question

warrior_won
#31
Quote: Originally Posted by darkbeaverView Post

Excuse me, but haven't we just destroyed a nation with premeditated self-defence. I'v always had a problem differentiateing between the two. So we should logically commit the act and decide the finer points after the fact. Maybe there's no solution.

If you're referring to Iraq, that was an alleged "preemptive" strike. Not a "premeditated" self-defense. There's a difference.

Premeditated self-defense would be giving forethought to how you would respond in the event of an actual attack.

Preemptive self-defense would be attacking the assailant before he had an opportunity to attack you.

In the former, you are preparing for an aggressor to actually hit you. In the latter, you are the aggressor.
 
darkbeaver
#32
Quote: Originally Posted by warrior_wonView Post

If you're referring to Iraq, that was an alleged "preemptive" strike. Not a "premeditated" self-defense. There's a difference.

Premeditated self-defense would be giving forethought to how you would respond in the event of an actual attack.

Preemptive self-defense would be attacking the assailant before he had an opportunity to attack you.

In the former, you are preparing for an aggressor to actually hit you. In the latter, you are the aggressor.

So are you saying that preemptive acts of self defence are spontaneous requiring no meditation.
 
lone wolf
#33
Quote: Originally Posted by warrior_wonView Post

Tell that to the Supreme Court who recently affirmed that police officers may be sued for negligence.



Who is to say that there would be an investigation? We're dealing with a hypothetical homicide where the Crown has elected to pursue a criminal prosecution. In such a circumstance, it would be part of the defence strategy to argue that the homicide was justified. There would be no investigation of the police at that time.

Instead, the defense would produce evidence to show that the accused had reasonable and probable grounds on which to believe that his safety were in danger. This would not be difficult.

The defense would then have to show that the accused made his concerns known to the police. If the police refused to take the complainant seriously, and the complainant was in legitimate danger, the police are negligent. It has yet to be determined whether the conduct of the police goes beyond the threshold of negligence.



Self-defense CAN be premeditated to a certain extent. It is perfectly within your right to take the position that you will kill anyone that attempts to kill you. The spantanaity element is lost once you become aware that your life is threatened. You then need only the attempt on your life before you can respond with force.

It is in no way similar to "setting a trap". Someone places a price on your head. You become aware of this. You make your concerns known to the police, but they ignore you. Are you expected to sit around and wait to die? Of course not! That would be ridiculous. No one is obligated to live in fear.

You know the theory. I hope reality proves in kind. Truth is a very harsh lesson to learn.

Woof!
 
Said1
#34
Try looking some cases,sentancing judgementas and appeals at the provincial courts. You can see how the law is interpreted, case by case - province by province. I could read that stuff for hours.

Index: www.canlii.org/en/on/oncj/index.html (external - login to view)

Sentancing Judgement; Ontario Superior Court of Justice: www.canlii.org/eliisa/highlig...nlii13933.html (external - login to view)
 
darkbeaver
#35
Quote: Originally Posted by Said1View Post

Try looking some cases,sentancing judgementas and appeals at the provincial courts. You can see how the law is interpreted, case by case - province by province. I could read that stuff for hours.

Index: www.canlii.org/en/on/oncj/index.html (external - login to view)

Sentancing Judgement; Ontario Superior Court of Justice: www.canlii.org/eliisa/highlig...nlii13933.html (external - login to view)

You must be easy to baby-sit.
 
warrior_won
#36
Quote: Originally Posted by darkbeaverView Post

So are you saying that preemptive acts of self defence are spontaneous requiring no meditation.

No, I am saying that a preemptive strike is NOT self-defense.

One can build an army and prepare for an attack, without actually launching an attack. To launch an unprovoked attack could certainly be spontaneous or premeditated, but definitely not self-defense.
 
Said1
#37
Quote: Originally Posted by warrior_wonView Post


Self-defense CAN be premeditated to a certain extent. It is perfectly within your right to take the position that you will kill anyone that attempts to kill you. The spantanaity element is lost once you become aware that your life is threatened. You then need only the attempt on your life before you can respond with force.

It is in no way similar to "setting a trap". Someone places a price on your head. You become aware of this. You make your concerns known to the police, but they ignore you. Are you expected to sit around and wait to die? Of course not! That would be ridiculous. No one is obligated to live in fear.

This can be tricky. In cases where extreme domestic violenc is evendent and reported, self-defense wasn't/isn't always applicable given that the victim wasn't threatening their spouses life at the time of the killing. But again, that depends, too.
 
Said1
#38
Quote: Originally Posted by darkbeaverView Post

You must be easy to baby-sit.


Oh yes. Give me a factum full of violence and I'll be your best freind.
 
warrior_won
#39
Quote: Originally Posted by lone wolfView Post

You know the theory. I hope reality proves in kind. Truth is a very harsh lesson to learn.

Woof!

What exactly is the truth?

He pulled out a knife and lunged at me. I grabbed his arm and forced the knife back into his own chest. He died hours later as a result of internal injuries and profuse bleeding.

There was no premiditated intent to kill. The weapon belonged to the assailant. The assailant was in the process of attempting to inflict death or grievous harm upon my person when I responded. The ensuing struggle caused the assailant's knife to become lodged in his chest.

If I had not responded in the manner I had, it is quite probable that I would have been the person with a knife in my chest. It is probable that I would have been the one who subsequently died of internal injuries and excessive bleeding.

In this scenario, it's kill or be killed. This is precisely what section 34 of the C.C.C. is meant to address.

Let me offer some "premeditation" now by saying that I would respond to such a situation in exactly the manner described above. Am I entrapping anyone? No! Am I committing an offense? No! I'm merely asserting my right to defend myself. I'm also stating that my defensive actions are contingent on the actions of a would be assailant. Is there a lack of truth here? No! Am I in the wrong for thinking that my personal obligation is in the preservation of my own life? Absolutely not!

I dunno, let the courts decide.
 
warrior_won
#40
Quote: Originally Posted by Said1View Post

This can be tricky. In cases where extreme domestic violenc is evendent and reported, self-defense wasn't/isn't always applicable given that the victim wasn't threatening their spouses life at the time of the killing. But again, that depends, too.

The idea is that force can be countered with force. If you slap me across the face, I cannot slap you back. The retaliation would not be justifiable. In such a circumstance my option would be to call the police and make a criminal assault complaint.

If you slap me in the face and continue to slap me in the face repeatedly, I am permitted to respond with force. The idea being that you will not stop slapping me in the face as long as I remain defenseless. It is not a legitimate option for me to call the police.

In the former, I would not be permitted to use force should the police not respond in a timely manner -- or even not at all.

In the latter, my choices are to be whipped silly or to fight back. I cannot accept waiting for police as an option. I am under no obligation to endure the assault.

Does that make sense?

Domestic violence is a bizarre phenomenon anyway. In most cases of domestic violence, the victim does not want to be removed from the situation. Nor does the victim choose to fight back, or have the law intervene. This is the choice of the victim -- not the obligation of the victim.

So would a victim be justified in killing his/her partner while they slept? The law says no! The law says that doing so would not be reasonable. The victim would have other lawful remedies that he/she would be expected to pursue. So, what can I say...
 
Sal
#41
Quote: Originally Posted by UnforgivenView Post

Having posted this shows premeditation and malice aforethought which puts you away for life without parole for 25. So don't even think about trying to kill me.

Tch, and here I thought she was going to kill me...
 
Said1
#42
Quote: Originally Posted by warrior_wonView Post

The idea is that force can be countered with force. If you slap me across the face, I cannot slap you back. The retaliation would not be justifiable. In such a circumstance my option would be to call the police and make a criminal assault complaint.

If you slap me in the face and continue to slap me in the face repeatedly, I am permitted to respond with force. The idea being that you will not stop slapping me in the face as long as I remain defenseless. It is not a legitimate option for me to call the police.

In the former, I would not be permitted to use force should the police not respond in a timely manner -- or even not at all.

In the latter, my choices are to be whipped silly or to fight back. I cannot accept waiting for police as an option. I am under no obligation to endure the assault.

Does that make sense?

Domestic violence is a bizarre phenomenon anyway. In most cases of domestic violence, the victim does not want to be removed from the situation. Nor does the victim choose to fight back, or have the law intervene. This is the choice of the victim -- not the obligation of the victim.

So would a victim be justified in killing his/her partner while they slept? The law says no! The law says that doing so would not be reasonable. The victim would have other lawful remedies that he/she would be expected to pursue. So, what can I say...

The people who interpret and apply the law have said yes, it was resonable to shoot/stab/beat to death a spouse you lived in fear of while they slept or were peacefully eating their dinner. So, what can I say.....
 
lone wolf
#43
Quote: Originally Posted by warrior_wonView Post

What exactly is the truth?

He pulled out a knife and lunged at me. I grabbed his arm and forced the knife back into his own chest. He died hours later as a result of internal injuries and profuse bleeding.

There was no premiditated intent to kill. The weapon belonged to the assailant. The assailant was in the process of attempting to inflict death or grievous harm upon my person when I responded. The ensuing struggle caused the assailant's knife to become lodged in his chest.

If I had not responded in the manner I had, it is quite probable that I would have been the person with a knife in my chest. It is probable that I would have been the one who subsequently died of internal injuries and excessive bleeding.

In this scenario, it's kill or be killed. This is precisely what section 34 of the C.C.C. is meant to address.

Let me offer some "premeditation" now by saying that I would respond to such a situation in exactly the manner described above. Am I entrapping anyone? No! Am I committing an offense? No! I'm merely asserting my right to defend myself. I'm also stating that my defensive actions are contingent on the actions of a would be assailant. Is there a lack of truth here? No! Am I in the wrong for thinking that my personal obligation is in the preservation of my own life? Absolutely not!

I dunno, let the courts decide.

In a spontaneous attack - like your scenario - there is no dispute that you were clearly in the right. Should you be attacked in your kitchen, a knife MAY be justified if you felt your life was in jeopardy. Now, if the assailant was in another room, you might have a tough time of it because a knife is not normally found elsewhere. If the attacker has no other weapon but his bare hands, a knife may NOT be used in your own defense because that excedes "like force". If you were attacked on the street and had a weapon at your disposal, there could be a strong argument made that you were carrying a concealed weapon. Then, the "self defence" may become premeditated - manslaughter.

I have been in the situation where the end (had it been a bit different) would have been determined to be justifiable homicide. Had my wife not screamed and jarred me back into the real world.... Really, I'm not prepared to discuss it in a public forum. It's one of those gray areas - like the laws of pursuit across a jurisdictional boundary.

What is the truth? It's the one thing you can't second guess in those thousand-and-one questions you live the rest of your life. Once it's happened, you'll never go back.
 
warrior_won
#44
Quote: Originally Posted by Said1View Post

The people who interpret and apply the law have said yes, it was resonable to shoot/stab/beat to death a spouse you lived in fear of while they slept or were peacefully eating their dinner. So, what can I say.....

Are you talking about Canada or the United States? Who are the "people who interpret and apply the law"? Can you corroborate your claims with actual court decisions? Links to decisions on the CII would suffice. So don't know what you can say, but I know what you can do. Back it up!
 
Said1
#45
Quote: Originally Posted by warrior_wonView Post

Are you talking about Canada or the United States? Who are the "people who interpret and apply the law"? Can you corroborate your claims with actual court decisions? Links to decisions on the CII would suffice. So don't know what you can say, but I know what you can do. Back it up!

Why so touchy? All of a sudden you need EVERYTHING clarified?

If you're as familiar with the law as you would like those reading your posts to think, I'm quite certain you have come across an aquital or two where extreme domestic violence was present and the 'battered women defense' was successfully used, in Canada.

Anyway, this is getting somewhat redundant. If you honestly expect me to believe you need everything explained ie: those who interpret the law, I'm not wasting my time.

Oh, and good luck with your exams! You have section 34 down pat!
 
warrior_won
#46
Quote: Originally Posted by Said1View Post

Why so touchy? All of a sudden you need EVERYTHING clarified?

Not clarified, verified. And it's not "all of a sudden," it's been my nature for as long as I can remember.

Quote:

If you're as familiar with the law as you would like those reading your posts to think, I'm quite certain you have come across an aquital or two where extreme domestic violence was present and the 'battered women defense' was successfully used, in Canada.

I'm not as familiar with the law as you suggest I purport to be. I have made it very clear in several of my posts that I am not a lawyer. I've also stated explicitly that I simply "do not know" some things.

I'm not familiar with any instances of "battered woman defense" being successful in Canada. As a matter of fact, I'm all too keenly aware of the difficulties women face in getting convictions against men alleged to be abusive. I can't, for the life of me, think of a reason for a Canadian court to rule that homicide is a legitimate alternative to simply packing up and leaving. Of course, most battered women don't want to leave.

Quote:

Anyway, this is getting somewhat redundant. If you honestly expect me to believe you need everything explained ie: those who interpret the law, I'm not wasting my time.

Redundant? Hardly! You're making a claim and looking for excuses when you're called on your claim. And it's not unreasonable to ask for clarification on a statement like, "Those who interpret and apply the laws say yes." Everybody interprets the laws. Every vigilante on the planet applies the law. Do the courts agree with all of these people? Absolutely not! The courts, more often than not, say, "think again."

Quote:

Oh, and good luck with your exams! You have section 34 down pat!


What exams? I'm neither a student nor a lawyer wannabe. I'm a private citizen that enjoys intellectually stimulating debate.
 
Said1
#47
Quote: Originally Posted by warrior_wonView Post

Not clarified, verified. And it's not "all of a sudden," it's been my nature for as long as I can remember.

How would I know that? And yes, it was all of a sudden. You started out ok, though.



Quote:

I'm not as familiar with the law as you suggest I purport to be. I have made it very clear in several of my posts that I am not a lawyer. I've also stated explicitly that I simply "do not know" some things.

I've only read two of your posts. I know you're not a lawyer. But neither am I.

Quote:

I'm not familiar with any instances of "battered woman defense" being successful in Canada. As a matter of fact, I'm all too keenly aware of the difficulties women face in getting convictions against men alleged to be abusive. I can't, for the life of me, think of a reason for a Canadian court to rule that homicide is a legitimate alternative to simply packing up and leaving. Of course, most battered women don't want to leave.

Not all cases that come before the courts are listed and I haven't searched for R V Ferguson and R V Whynot. Both used the the battered women's syndorom, although Whynot was convicted on appeal and sentanced to six months. There is another more recent although I can't remember the women's last name - happened in small Ontario/Quebec boarder town, very close to Gatineau. That's three off the top of my head. I know two of them personally. One is a violent criminal, the other is not.

Quote:

Redundant? Hardly! You're making a claim and looking for excuses when you're called on your claim. And it's not unreasonable to ask for clarification on a statement like, "Those who interpret and apply the laws say yes." Everybody interprets the laws. Every vigilante on the planet applies the law. Do the courts agree with all of these people? Absolutely not! The courts, more often than not, say, "think again."

Yes, you were being redundant. Just call them how I see them.

I didn't claim the courts do not say 'think again' more often than not.

And, if you honestly think I'm referring to YOU or some vigilante group when speaking about those who interpret and apply the law, I would have to say you are being purposely obtuse. Actually, you probably aren't. I should apologize for that. We'll see.

Quote:

What exams? I'm neither a student nor a lawyer wannabe. I'm a private citizen that enjoys intellectually stimulating debate.

Well, you kind of remind me of a student. They like to quote charters and junk.

What do you do for a living, help batter women?
Last edited by Said1; Dec 2nd, 2007 at 07:00 PM..
 
triedit
#48
Quote: Originally Posted by warrior_wonView Post

I can't, for the life of me, think of a reason for a Canadian court to rule that homicide is a legitimate alternative to simply packing up and leaving. Of course, most battered women don't want to leave.

You're ignorance is showing here. Ive never met a woman who didnt want to leave. I was a battered wife for 8 years. I COULDNT leave. I had no means. And I knew if I did he'd hunt me down and kill me. Yes, I involved the law, no they didnt do anything.
"Picking up and leaving" isnt at all simple.

Im not planning to kill anyone. I saw a tv show where they allowed a murderer to go free because the victim had raped the doer's sister.
 
warrior_won
#49
Quote: Originally Posted by Said1View Post

How would I know that? And yes, it was all of a sudden. You started out ok, though.

It wasn't all of a sudden. I always ask for verification when people introduce what they purport to be facts. Facts require verification. Academic debate does not require verification. The debate is focused on merit.




Quote:

I've only read two of your posts. I know you're not a lawyer. But neither am I.

So what are you? What qualifies you to speak with authority on the subject of abuse, particularly with respect to domestic abuse?


Quote:

Not all cases that come before the courts are listed and I haven't searched for R V Ferguson and R V Whynot. Both used the the battered women's syndorom, although Whynot was convicted on appeal and sentanced to six months. There is another more recent although I can't remember the women's last name - happened in small Ontario/Quebec boarder town, very close to Gatineau. That's three off the top of my head. I know two of them personally. One is a violent criminal, the other is not.

What's the 'R' mean? Were they 'R' rated cases?


Quote:

Yes, you were being redundant. Just call them how I see them.

How so? What did I say or do that was redundant?

Quote:

I didn't claim the courts do not say 'think again' more often than not.

That's where it gets interesting. Why you ask? Because of precedent. If a majority of courts say no, then there is precedent. Courts are generally reluctant to go against the grain under those circumstances. Especially if the precedent was set by a higher court.

You mentioned that one woman was convicted on appeal by the crown. That to me would suggest that a precedent was set in a higher court. Lower courts almost never rule contrary to a precedent established in the Court of Appeals or the Supreme Court of Canada. Why you ask? Because leave to appeal would be damn near guaranteed. And the decision of the lower court would be overturned or set aside and a new trial ordered.

Quote:

And, if you honestly think I'm referring to YOU or some vigilante group when speaking about those who interpret and apply the law, I would have to say you are being purposely obtuse. Actually, you probably aren't. I should apologize for that. We'll see.

I made no suggestion that I was somehow involved with vigilanteism. So why on Earth would I think that you were speaking of me?

I asked because there are many people who interpret and apply the laws. These people include the Crown prosecutors, private practice lawyers, law enforcement (police), and judges, among others. All of them get told that they are wrong from time to time. With police officers being wrong most frequently, followed by the crown, followed by private practice lawyers, followed by lower court justices.


Quote:

Well, you kind of remind me of a student. They like to quote charters and junk.

You don't have to be a student to expect accuracy.

Quote:

What do you do for a living, help batter women?

No, I don't batter women. My modus operandi is to remain as far away from women as humanly possible. And I'm not exagerating one iota here. You should read some of the letters I've written and faxed. I make myself very clear.

I've actually never "hit" a female in my entire life. And by "hit", I mean in the literal sense. I do not mean the slang. i.e. fu-cked a female.
 
Zan
#50
Quote: Originally Posted by trieditView Post

...Im not planning to kill anyone. I saw a tv show where they allowed a murderer to go free because the victim had raped the doer's sister.


I'm curious about the show you saw - was it a documentary or fiction?
 
Tonington
#51
There's a case in the States right now that is dealing with this, justifiable homicide. It's what I thought of when I read the OP.

www.cbsnews.com/stories/2007/...r=HOME_3517564 (external - login to view)
 
warrior_won
#52
Quote: Originally Posted by trieditView Post

You're ignorance is showing here. Ive never met a woman who didnt want to leave. I was a battered wife for 8 years. I COULDNT leave. I had no means. And I knew if I did he'd hunt me down and kill me. Yes, I involved the law, no they didnt do anything.
"Picking up and leaving" isnt at all simple.

I have no "real world" experience with domestic assault. I've grown up and live in an environment that is pretty much free of domestic violence. I have read a considerable amount of material that was published by women's advocacy groups. What I was able to garner from that, most women are reluctant to press charges against their abusive partners. The majority of battered women who do press charges, subsequently withdraw the charges or refuse to testify against their abusive partners. In almost all circumstances, the battered partner claims that the parties have reconciled.

I suppose I will never know any other "reality" as far as domestic violence is concerned. Because I will never experience it -- as a victim or a perpetrator.
 
#juan
#53
If the bad guy/girl has his/her gun two inches into your ear, just cocked the hammer, and is increasing pressure on the trigger, it is probably a bit passed a good time to push a knife into him/her to save yourself. Might I suggest a few drops of cyanide under his tongue five minutes ago.
 
triedit
#54
Quote: Originally Posted by ZanView Post

I'm curious about the show you saw - was it a documentary or fiction?

Pure fiction. But it made me think. I believe that some people really do deserve to die. Some slowly and painfully, preferably with much humiliation.

warrior--the women don't leave because they are either afraid, unable to support themselves and thier kids, or have been convinced they deserve it. Nobody chooses to be abused.

I sincerely hope you are never in such a situation. Men get abused too. But if you are still dating, you might want to give this some more thought. Many women have been abused and you might find yourself dating a survivor.
 
Dexter Sinister
#55
I think you'd have to go to case law for precedents to get an idea of what a court might decide in any particular circumstances, but some things seem clear to me. If someone comes after you with a knife, for instance, and in the ensuing struggle for your life you manage to deflect the knife and it ends up between your assailant's ribs, that would almost certainly be justifiable homicide. But if you learn that there's a hit planned on you and who the hit man is, and arrange a hit on him first, that's murder. If a burglar enters your home and you manage to knock him down, that would be a justifiable use of force in self defence, but if while he's down you kick him in the head, you're guilty of assault and battery, and manslaughter if he dies as a result. If a guy pulls a gun on you and you manage to wrestle it away from him, then shoot him with it, you're probably guilty of manslaughter; once you've got the gun he's no longer an immediate danger to you. The law can lay out only the general circumstances to be considered, it can't specify the judgment a priori in every case.

I once asked a police officer about things like this after my home had been burgled, and he was pleasantly honest and direct. "What if," I asked him, "I'd been home when this scumbag entered the premises and I went after him?" He told me that it's not recommended to try to attack such people, the safest thing to do is go along with whatever they want, but if you do manage to take them down no police officer would suggest charges be laid against you, that's legitimate self defense, and very few officers would inquire closely about the nature of the burglar's injuries. In other words, you could probably get away with giving the bastard a few extra whacks when he's down, just don't kill him.
 

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