Fear of Assault Charges Dissuades Good Samaritans

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,

Preventing assault

37. (1) 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.
[emphasis added]

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 once 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.

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Comments

  1. David Cheifetz

    The letter to the editor states:

    “All were of the opinion that the biggest risk was being sued for assaulting an alleged mugger, and going broke paying lawyers to defend them, while the perpetrator would be underwritten in his lawsuit by the government.”

    I assume the letter writer was referring to Legal Aid. One can’t stop the mugger from suing for assault, but that action won’t be funded by legal aid (in Ontario) nor otherwise funded by the gov’t (in Ontario).

  2. I’ll admit that I wasn’t entirely clear what the writer was referring to there, but I assumed it was talking about a criminal charge. The perpetrator is hardly the party on the other side, but the (erroneous) perception would be that the Crown would be prosecuting to advance their interest.
    In the end though it’s not so much the actual risk of litigation at issue here as it is the concern that the legal system would provide them some complications as a result of them helping someone.

  3. David Cheifetz

    Let’s assume that I have good reason to believe I know who the writer of that letter is. Let’s assume I’m correct. I doubt he was referring to his work-related colleagues. They’d certainly know the difference. His usual non-work colleagues? I found the suggestion that most harboured the misunderstanding he suggests surprising, but then perhaps he wasn’t referring to that different group.

  4. David, I’ll also admit that when originally looking at the authorship of the letter I did see a similar name in conjunction with yours.
    Obviously clarification from that individual would be most desirable, but your thoughts on the subject are welcome as well.