RULING DISALLOWING SELF-DEFENCE
[Please note: The jury for this case began deliberations on May 12, 1997. The verdicts were delivered on May 20, 1997]
Filed: May 22, 1997
Registry: New Westminster
Counsel for the Crown: L. Bernard and J. Fawcus
Counsel for the Accused Mary Pena, Ronald Dionne, and Percy Rosette: S. Tate
Counsel for the Accused Grant Archie, Brent Potulicki, Trond Halle, and Joseph Ignace: G. Wool
Counsel for the Accused Flora Sampson, Edward Dick, Stuart Dick, Sheila Ignace, and Francis Dick: D. Campbell
Counsel for the Accused Glen Deneault: M. Azevedo
Unrepresented Accused Shelagh Franklin, James Pitawanakwat, Jones Ignace, Suniva Bronson, and Robert Flemming.
Place and Date of Hearing:
May 21, 1997
 The issue is whether to leave the defence of self defence with the jury on the charges of attempted murder, and related counts. I earlier ruled that it would not, and these are my reasons.
 The Crown's theory is as follows:
1. With respect to Count 6, that on August 18, 1995, Joseph Ignace attempted to murder Constable Wilby, who was leading an ERT squad on an intelligence gathering covert operation near the encampment.
2. With respect to Count 10, that on September 11, 1995, Jones Ignace attempted to murder peace officers exposed from a Bison armoured personnel carrier vehicle, while those officers were engaged in the lawful arrest of two persons in the water near the north shore of Gustafsen Lake.
3. Also with respect to Count 10, that subsequent to the lakeside attempted arrest incident and after the red Bison became disabled, Joseph Ignace attempted to murder peace officers exposed from Bisons attempting to rescue the occupants of the red Bison.
 I will return to these incidents after discussing the law.
[T]he self-defence provisions of the Criminal Code are not available to permit persons to defend themselves against a police "assault" made during the course of arrest. If a person knows that his or her "assailant" is a police officer who is attempting to arrest, then the defence of self-defence is not available (See Regina v. Hardy (1989), B.C.J. No. 1968 (B.C.C.A.)). The accused in Hardy was charged with attempting to murder a police officer and with aggravated assault of that officer. The police officer had come up behind the accused and grabbed his shoulder, identifying himself as a police officer (although the accused claimed no such statement was made). A struggle ensued in which the accused stabbed and slashed the officer with a knife. The trial judge instructed the jury that if they concluded that the accused knew that he was facing a police officer, then they could not consider the defence of self defence. This instruction was upheld on appeal.
 The Crown interprets Hardy as standing for the proposition that the defence of self defence is unavailable to an accused who assaults a police officer and who knows that he is assaulting a police officer. In my respectful view, the correct interpretation of Hardy requires that an additional element be present before an accused is denied the defence of self defence: the officer must be acting lawfully. One of the key factual bases for the decision in Hardy is that the police officer was proceeding lawfully to arrest the accused. It should also be noted that where an accused is unaware of the identity of his or her assailant, then he or she may claim self defence.
 Where an attempted arrest is unlawful, an accused may be justified in assaulting a police officer in order to defend against that unlawful arrest. In R. v. Larlham,  4 W.W.R. 304 (B.C.C.A.), the accused resisted an unlawful search by two officers, kicking one officer in the groin and biting another. It was held that the accused was entitled to use whatever force was reasonably necessary to resist the search. The Court stated, at 304:
With great respect that is, in my opinion, a novel exposition of the law. What the learned Judge has said, in effect, is that s. 34 does not apply where the person committing the assault is a policeman; or, to put it another way, more closely in the language of the learned Judge, when the police use force to make an illegal search, the victim may not struggle but must submit and wait to sue in the civil courts. I can accept neither of those views and I must express my strong dissent from both of them.
 The Court went on to restrict this finding to situations involving unlawful searches, at 305:
I point out, in passing, that this was not a case of the police making an arrest. Different principles may apply there and nothing that I am saying here is intended to apply to the case of an arrest.
 However, subsequent authorities appear to extend the reasoning in Larlham to other situations, including those involving unlawful arrest. In R. v. Webers (1994), 95 C.C.C. (3d) 334 (Ont. Gen. Div.), the accused assaulted several police officers who were attempting to restrain his friend, an unwilling patient in a mental hospital. The court acquitted the accused on the basis that he was justified in using reasonable force to defend someone under his protection, pursuant to s. 37 of the Criminal Code.
 In R. v. Delong (1989), 47 C.C.C. (3d) 402 (Ont. C.A.), the accused was charged with assaulting a police officer in the execution of his duty. The accused argued that the police had acted unlawfully in arresting him. The Court of Appeal implicitly accepted that self defence should go to jury by finding that the trial judge's charge on this issue had been inadequate.
 Thus, it appears that where an arrest is unlawful, by reason of the use of excessive force by the arresting officers or by reason of lack of reasonable grounds for arrest, then an accused is entitled to use force in resisting that arrest, provided he or she uses no more force than is necessary. The corollary to this is that if the officers in the present case were proceeding on September 11, 1995 to lawfully arrest the two persons in the water, then Jones Ignace may not claim self defence.
 In the context of s. 34(2) it has been held that a reasonable belief may ground a claim of self defence: R. v. Petal (1994), 26 C.R. (4th) 145 (S.C.C.), affg (1993), 78 C.C.C. (3d) 543 (Que. C.A.) However, s. 34(2) explicitly refers to a "reasonable belief". No such wording is contained in s. 37.
 I conclude that in order to claim the defence of self defence, there must be some evidence from which the jury could conclude:
(i) that the attempt to arrest the two in the water was unlawful; or
(ii) that he was unaware of the identity of the peace officers; and
(b) That he used no more force than was reasonably necessary to prevent an unlawful assault of the two in the water.
 I return to the evidence in this case.
1. With respect to Count 6, the evidence is that on August 18, 1995, the members of the ERT squad were endeavouring to gather information covertly about the presence in the camp of people and weapons. They were not dressed in traditional police uniforms, but in clothing typical of those units, with no police markings or insignia. They carried M-16 rifles, except for one officer who carried a sniper rifle. Their instructions were to leave the area immediately upon detection and not engage camp occupants in any manner.
In the early morning hours, as darkness began to ebb, horses near the camp appeared to detect the police presence and the team decided to evacuate the area by the route they had entered. Constable Wilby went first, walking alone in a northerly direction towards the rocky knoll, with the camp to his left. His firearm was held across his lower chest.
To his right, a voice said something in what he believed to be a native dialect, then asked "Who is it?" Upon the last word being spoken, a high calibre firearm discharged from the direction of the voice, with the bullet passing within what Constable Wilby believed to be arm's length of his head. He immediately ran towards the rocky knoll. Another peace officer observed the person who discharged the firearm. That person then looked in the direction of that officer, uttered a profanity and quickly departed from view.
 Mr. Wool seeks to have ss. 34, 35, 37 and other defence provisions relating to defence of real and personal property left with the jury.
 Section 34 cannot apply as there is no evidence of the police having committed an assault.
 Section 35 cannot apply as there is no evidence that Joseph Ignace committed an assault leading to a response from police from which Joseph Ignace defended himself.
 Section 37 cannot apply as Constable Wilby was walking in a direction away from both the encampment and from the person who shot at him, with his rifle in a carrying position. There is no evidence from which a jury could conclude that the shot was fired by the accused to prevent an assault of himself or anyone under his protection. As well, there is no evidence from which the jury could conclude that the ingredients of ss. 38, 39, 40 or 41 apply, all of which sections Mr. Wool urged me to leave with the jury.
2. With respect Count 10 and Jones Ignace, the evidence is that peace officers in the red Bison were engaged in the lawful arrest of the two persons in the water. Those two persons had emerged from the red pick-up truck that had been disabled on 1000 Road. The police had reasonable grounds to believe that both were in possession of firearms for a purpose dangerous to the public peace, one firearm being a prohibited weapon. There is no evidence of excessive force being employed in the attempted arrest. Thus the arrest was lawful.
The evidence is that Corp. Preston fired two shots into the water well in front of the two persons in order to get their attention, then told them to advance towards the Bison with hands raised. As they complied with that direction, high calibre shots were fired very near the two officers from a direction generally opposite the two in the water.
The Bison was well marked with police insignia, as were the exposed backs of the two peace officers. Particularly at that stage of the stand-off, there is no evidence from which the jury could infer that Jones Ignace believed that the two in the Bison were anything other than peace officers.
 Even if an honest but mistaken belief that the arrest was unlawful is sufficient to trigger s. 37, there is no evidence from which the jury could find that Jones Ignace believed police were engaged in an unlawful arrest or were about to commit an unlawful assault, even assuming he considered the two individuals in the water to be under his protection. Nor is there evidence from which it could be inferred that he believed that the amount of force he applied was necessary to prevent that unlawful assault.
 I conclude that there is no air of reality to the proposed defence under s. 37. As I understand it, no other ground of self defence is advanced, nor could it be.
3. With respect to Count 10 and Joseph Ignace, the Crowns theory is that Joseph Ignace attempted to kill exposed peace officers after the red Bison became disabled. The evidence is that the red Bison was under almost continual fire after it became disabled, with no officer exposed, except briefly to close two hatches. Three other Bisons became involved in the rescue of the first, with officers exposed at various times to effect that plan. In the course of so doing, despite laying down a screen of cover fire, the evidence is that there was a fairly steady rain of return fire, with many strikes near exposed officers.
 Section 35 has possible application if the jury were to find that the accused was responding to an unlawful assault by police. That finding is not open on the evidence. In any event, s. 35(c) requires that the accused first retreat from the conflict "as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose."
 There is no evidence from which a jury could conclude that a retreat was not feasible. A significant period of time elapsed after the red Bison became disabled and before the other Bisons arrived. During that time, there was relatively constant fire directed at the red Bison with no return fire of any kind. Thereafter, it was only the continuing incoming fire that led police to lay down cover fire in order to effect the rescue.
 I conclude there is no air of reality to this defence.
 The subjective purpose of an accused is a factor to be considered in determining whether or not a weapon is possessed for a purpose dangerous to the public peace. Where an accused has possession of a weapon for defensive purposes, this may suggest that the possession is not for a dangerous purpose. In R. v. Sulland (1982), 2 C.C.C. (3d) 68 (B.C.C.A.), Seaton J.A. stated:
In my view, one does not commit the offence with which we are concerned if one carries a weapon for self-defence that is an appropriate instrument with which to repel, in a lawful manner, the type of attack reasonably apprehended and if the person carrying it is competent to handle the weapon and is likely to use it responsibly. In the absence of other circumstances, such as conduct calculated to provoke an attack, the purpose is unlikely to be dangerous to the public peace. That an attacker might be repelled forcefully, and even injured, is not a danger that the section refers to. In that case the attack, not the response to it, breaches the public peace.
 It is open to the jury to conclude that some of the accused were in possession of weapons for defensive purposes on the basis of certain incidents involving employees of the rancher and certain threats and implied threats from those persons.
I.B. Josephson, J.