Legal Research

Fear of Assault Charges Dissuades Good Samaritans

By Omar Ha-Redeye

The City of Toronto is gearing up for its mayoral elections over the next few months, and public transit tops the list for issues of public interest.  But one incident on the Toronto subway system has residents worried about safety.

On Apr. 24 at 8:30 p.m., 79-year-old Yusuf Hizel was traveling eastbound on the Bloor-Danforth line when he was assaulted by two individuals who took his wallet.  Although the train was full, nobody intervened or attempted to obtain assistance from subway officials.  The incident appears to have happened relatively quickly, which may have also limited the ability of other passengers to intervene.

The Toronto subway system is very safe, but there have been similar bystander incidents in Toronto in the past.  Most notable was that of Paul Semple, a 22-year-old Ryerson University student murdered in 1992 when coming to the aid of a woman being attacked by four individuals.

Based on the comments provided by readers in Toronto, fear of personal safety was one of the reasons why people may not have intervened.  But another reason seems to be more strange – the fear of litigation.  Toronto residents are actually afraid to intervene in a robbery out of a fear of being charged with assault.

There is the Good Samaritan Act in Ontario, which only offers protection from civil liability for those offering first-aid.  Sections 34-35 of the Criminal Code does provide a self-defence in light of aggression, but this is limited to those who are the target of the assault.

One of the suggestions that has emerged is a local chapter of Guardian Angels, but these public citizens would be vulnerable tot he same liabilities as everyone else.  Theoretically, by intervening in a robbery in a non-physical way an individual could then become the target of an assault and invoke s. 35, but that would involve deliberately placing oneself under a reasonable apprehension of “grievous bodily harm.”  Volunteering for that type of public service is tough to get.

In R. v. McIntosh the SCC ruled that where ss. 34 and 35 do not apply, s. 37 can serve as a defence,

One of the main advantages of s. 37 is that according to the B.C. Court of Appeal in R. v. Grandin at para. 54, there is no need to determine who the aggressor was.

And of course there’s the reasonable apprehension of risk requirements and use of proportionate force that are involved in all of these defences.

Clement of Alexandria one postulated,

… if the law produces fear, the knowledge of the law is the beginning of wisdom; and a man is not wise without law.

The public education component over the complications behind establishing such a defence does not appear to be the major hurdle for standing up for people like Mr. Hizel.  Rather, its is the cost and time of retaining a lawyer to go to court to sort this all out that seems to be deterring public intervention.

When the fear of legal fees allows our public spaces to become places where people are afraid of violence, there seems to be something deeply flawed with our justice system.

Full post as published by Slaw.ca on May 02, 2010 (boomark / email).