person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by flight, unless such escape can be prevented by reasonable means in a less violent manner, if such force is neither intended nor likely to cause death or grievous bodily harm. 55-56 V., c. 29, s. 34. "It is the duty of every citizen to assist in the pursuit and capture of a criminal who is fleeing from arrest, when such citizen is called upon to do so by a peace officer.' R. v. Smith (1907), 7 Western L.R. 92, 95, per Perdue, J.A.; and see Code sec. 167. other cases. 43. Every one proceeding lawfully to arrest any person for Preventing any cause other than an offence in the last section mentioned escape in is justified, if the person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by flight, unless such escape can be prevented by reasonable means in a less violent manner, if such force is neither intended nor likely to cause death or grievous bodily harm. 55-56 V., c. 29, s. 35. rescue of 44. Every one who has lawfully arrested any person for Preventing any offence for which the offender may be arrested without escape or warrant is protected from criminal responsibility in using such arrested force in order to prevent the rescue or escape of the person person. arrested as he believes, on reasonable grounds, to be necessary for that purpose. 55-56 V., c. 29, s. 36. 45. Every one who has lawfully arrested any person for Idem. any cause other than an offence for which the offender may be arrested without warrant is protected from criminal responsibility in using such force in order to prevent his escape or rescue as he believes, on reasonable grounds, to be necessary for that purpose, if such force is neither intended nor likely to cause death or grievous bodily harm. 55-56 V., c. 29, s. 37. peace. 46. Every one who witnesses a breach of the peace is justi- Preventing fied in interfering to prevent its continuance or renewal and breach of may detain any person committing or about to join in or renew such breach of the peace, in order to give him into the custody of a peace officer, if the person interfering uses no more force than is reasonably necessary for preventing the continuance or renewal of such breach of the peace, or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of such breach of the peace. 55-56 V., c. 29, s. 38. Arrest in such case. Giving person in charge. Suppression of riot by magistrate. Into the custody of a peace officer.]-The term peace officer is defined by sec. 2, sub-sec. 26. 47. Every peace officer who witnesses a breach of the peace, and every person lawfully assisting him, is justified in arresting any one whom he finds committing such breach of the peace, or whom he, on reasonable and probable grounds, believes to be about to join in or renew such breach of the peace. 2. Every peace officer is justified in receiving into custody any person given into his charge as having been a party to a breach of the peace by one who has, or whom such peace officer, upon reasonable and probable grounds, believes to have, witnessed such breach of the peace. 55-56 V., c. 29, s. 39. Peace officer.]-The definition of this term is found in sec. 2(26), ante. Breach of the peace.]-A justice of the peace may apprehend, or cause to be apprehended by a verbal order merely, any person committing a breach of the peace in his presence. 2 Hale 86. A constable may also arrest for a breach of the peace committed in his presence. 1 Hale 587. But a private person is not justified in arresting or giving in charge of a policeman, without a warrant, a party who has been engaged in an affray, unless the affray is still continuing or there is reasonable ground for apprehending that he intends to renew it. Price v. Seeley (1843), 10 Clark & Fin. (H.L.) 28. A private person cannot of his own authority arrest another for a bare breach of the peace after it is over. 3 Hawkins P.C. 164. Any one who sees others fighting may lawfully part them and also stay them until the heat be over, and then deliver to the constable who may carry them before a justice of the peace in order to their finding security for the peace. Hawkins P.C., book 1, ch. 63, sec. 11. And while those are assembled together who have committed acts of violence, and the danger of their renewal continues, the affray itself may be said to continue; and during the affray the constable may, not merely on his own view, but on the information and complaint of another, arrest the offenders or either of them. Price v. Seeley, 10 Cl. & F. 28. Affray.]-An affray is the act of fighting in any public street or highway, or fighting to the alarm of the public in any other place to which the public have access. Sec. 100. Riot and unlawful assembly.]-See secs. 87 to 93, inclusive. 48. Every sheriff, deputy sheriff, mayor or other head officer or acting head officer of any county, city, town or district, and every magistrate and justice of the peace, is justified in using, and ordering to be used, and every peace officer is justified in using, such force as he, in good faith, and on reasonable and probable grounds, believes to be necessary to suppress a riot, and as is not disproportioned to the danger which he, on reasonable and probable grounds, believes to be apprehended from the continuance of the riot. 55-56 V., c. 29, s. 40. See also secs. 87 to 95, inclusive, and sec. 167. 49. Every one, whether subject to military law or not, acting Suppression in good faith in obedience to orders given by any sheriff, of riot by deputy sheriff, mayor or other head officer or acting head officer persons commanded of any county, city, town or district, or by any magistrate thereto. or justice, for the suppression of a riot, is justified in obeying the orders so given unless such orders are manifestly unlawful, and is protected from criminal responsibility in using such force as he, on reasonable and probable grounds, believes to be necessary for carrying into effect such orders. 2. It shall be a question of law whether any particular order Question is manifestly unlawful or not. 55-56 V., c. 29, s. 41. Magistrates must keep the peace when a riot occurs and restrain the rioters, and they may call upon all subjects to render assistance, and the latter may be given firearms for that purpose. R. v. Pinney, 5 C. & P. 261. A person who after reasonable notice omits without reasonable excuse to assist any sheriff, or peace officer, in suppressing a riot is guilty of an indictable offence. Sec. 95. of law. persons mischief. 50. Every one, whether subject to military law or not, who Suppression in good faith and on reasonable and probable grounds believes of riot by that serious mischief will arise from a riot before there is time apprehendto procure the intervention of any of the authorities aforesaid, ing serious is justified in using such force as he, in good faith and on reasonable and probable grounds, believes to be necessary for the suppression of such riot, and as is not disproportioned to the danger which he, on reasonable grounds, believes to be apprehended from the continuance of the riot. 55-56 V., c. 29, s. 42. By the common law, a private individual might lawfully endeavour, of his own authority and without any warrant or sanction from a magistrate, to suppress a riot by every means in his power; he might disperse or assist in dispersing those assembled and stay those engaged in it from executing their purpose, as well as stop and prevent others whom he saw coming up from joining the rest. Phillips v. Eyre, L.R. 6 Q.B. 15. If the occasion demanded immediate action and no opportunity occurred for procuring the advice or sanction of a magistrate, it was the duty of every subject to act for himself and upon his own responsibility in suppressing a riotous and tumultuous assembly, and the law protected him in all that he honestly did in the prosecution of that purpose. Ibid, per Willes, J., approving the charge of Tindal, C.J., to the grand jury of Bristol (1832), 5 C. & P. 261 (n). 51. Every one who is bound by military law to obey the lawful command of his superior officer is justified in obeying Protection of persons subject to military law. Question of law. Use of force. To prevent commission of offence. Act amount ing to offence. Extent justified. any command given him by his superior officer for the suppression of a riot, unless such order is manifestly unlawful. 2. It shall be a question of law whether any particular order is manifestly unlawful or not. 55-56 V., c. 29, s. 43. See secs. 48-50, and 91-93. 52. Every one is justified in using such force as may be reasonably necessary in order, (a) to prevent the commission of any offence for which, if committed, the offender might be arrested without warrant, and the commission of which would be likely to cause immediate and serious injury to the person or property of any one; or, (b) to prevent any act being done which he, on reasonable grounds, believes would, if committed, amount to any such offence. 55-56 V., c. 29, s. 44. The circumstances under which an arrest without warrant is allowed are set forth in secs. 31-39 and 646-652. Where A., to prevent B. from fighting with his brother, laid hold of him and held him down but struck no blow, upon which B. stabbed A., it was held that if A. had done nothing more than was necessary to prevent B. from beating his brother, and if he had died of the stab, the offence of B. would have been murder; but that if A. did more than was necessary to prevent the beating of his brother, it would have been manslaughter only. R. v. Bourne, 5 C. & P. 120. And where, under circumstances that might reasonably have induced the belief that a man was cutting his wife's throat, their son shot at and killed his father, it was held that if the son had reasonable grounds for believing and honestly believed that his act was necessary for the defence of his mother, the homicide was excusable. R. v. Rose, 15 Cox 540, Lopes, J. 53. 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. 2. 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. 55-56 V., c. 29, s. 45. Self-defence in assault, etc.]—It is a good defence in justification, even of a wounding or mayhem, to prove that the prosecutor assaulted or beat the defendant first, and that the defendant committed the alleged battery merely in his own defence. Archbold's Crim. Plead. (1900), 802. The difficulty arises in drawing the line between mere self-defence and fighting. R. v. Knock, 14 Cox C.C. 1. If the prosecutor lifted up his cane and offered to strike him, the defendant is justified in striking the prosecutor without waiting for the blow. Buller N.P. 18. A husband may justify a battery in defence of his wife, a wife in defence of her husband, a parent in defence of his child, a child in defence of his parent, a master in defence of his servant, and a servant in defence of his master. 1 Hawkins P.C., ch. 60, secs. 23, 24; Code sec. 16. If, however, the battery were greater than was necessary for mere defence, or if it were after all danger from the assailment was passed and by way of revenge, the prior assault will not justify. R. v. Driscoll, C. & M. 214; Anon., 2 Lewin C.C. 48. Defendant being justified by this section if the force used by him to repel an unprovoked assault was not meant to cause death or grievous bodily harm, or was no more than was necessary for the purposes of selfdefence, and there being evidence which, if believed, would have enabled the jury to find for defendant, the trial judge erred in charging the jury that there must be evidence that defendant could not otherwise preserve himself from death or grievous bodily harm. R. v. Ritter (1904), 8 Can. Cr. Cas. 31, 36 N.S.R. 417. Ordinarily the person beset is permitted to act only in self-defence; he cannot take the law into his own hands to inflict punishment for the injury. R. v. Milton, 3 C. & P. 31; R. v. Mabel, 9 C. & P. 474; 2 Bishop Crim. Law 44. But where there is a manifest intent or endeavour by the assailant to commit by violence or surprise an offence formerly a felony, such as murder, robbery, burglary and the like, the party assailed is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger and if he kill him in so doing, it is called justifiable self-defence. 1 East P.C. 271. If in attempting to turn a mere trespasser out of a house, the householder is assaulted by the trespasser, he may kill him if he was not able by any other means to avoid the assault or retain his lawful possession, and in such case a man need not fly as far as he can as in other cases of selfdefence for he has a right to the protection of his own house. 2 Burn's Justice, 13th ed., p. 1315. In the New Brunswick case of R. v. Theriault (1894), 2 Can. Cr. Cas. 444, a new trial was ordered where the trial judge had instructed the jury that, to justify or excuse the homicide, the prisoner must be found to have had reasonable grounds for apprehending imminent peril to his life or the lives of his wife and children, and had made no mention of a reasonable apprehension of grievous bodily harm as a ground of justification although the evidence pointed to both. Not having provoked such assault.]-The provocation may be given by blows, words or gestures. Section 54 (2). 54. Every one who has without justification assaulted an- Self defence other, or has provoked an assault from that other, may never- in case of theless justify force subsequent to such assault, if he uses such aggression. force under reasonable apprehension of death or grievous bodily harm from the violence of the person first assaulted or provoked, and in the belief, on reasonable grounds, that it is necessary for his own preservation from death or grievous |