VII) Legal Authority

The defence of legal authority is now largely statutory in nature. Tort law has adopted various statutory provisions designed to protect governmental officials and private citizens from criminal liability in the administration of the criminal justice system. This legal authority is found in a range of statutes including the Criminal Code [Note 94: Ibid.] and is used primarily to protect officials from liability in battery and false imprisonment actions. One issue that arises frequently is the authority of private citizens and police officers to make arrests without warrants. An arrest is a false imprisonment that the defendant often attempts to justify on the ground of legal authority. The power of a private citizen to arrest another person without a warrant is limited. She is permitted to arrest a person who is found committing an indictable offence, or a person who she believes on reasonable grounds has committed a criminal offence and is both escaping arrest and being freshly pursued by persons who have lawful authority to arrest the person. An owner or possessor of land can also arrest a person whom she finds committing a criminal offence on her land. [Note 95: Ibid., s. 494. ] This places a significant burden on private citizens, including store detectives attempting to combat shoplifting, in justifying an arrest. It is warranted by the high priority given in Canada to the freedom of the person and freedom from wrongful detention. Police and other peace officers enjoy more generous powers. They may arrest a person who has committed an indictable offence or who, on reasonable grounds they believe has committed or is about to commit an indictable offence. They may also arrest a person who is found committing a criminal offence. [Note 96: Ibid., s. 495(1).]

A more extensive consideration of the defence of legal authorization cannot be undertaken here, [Note 97: See Klar, above note 8 at 113-17; and Linden, above note 3 at 87-93.] but careful consideration must be given to a range of statutory privileges and complementary common law protections when the torts of intentional interference with the person, such as battery, and torts of intentional interference with property, such as trespass to chattels and trespass to land, are committed in the exercise of functions related to the administration of criminal justice.

VIII) Illegality: Ex Turpi Causa Non Oritur Actio

There are some old decisions suggesting that a claim for the intentional interference with the person may be defeated by the illegality or immorality of the plaintiff's conduct at the time when the tort was committed. The defence has now fallen into disuse and disrepute. The Supreme Court observed in Norberg v. Wynrib [Note 98: Above note 87.] that the defence is applicable only in rare circumstances. This position was further clarified in Hall v. Hebert, [Note 99: [1993] 2 S.C.R. 159.] where the Court restricted the defence to situations where the imposition of liability would permit the plaintiff to profit from wrongdoing, evade a criminal sanction, or would, in some other way, undermine the integrity of the legal system. It does not apply to a claim for compensatory damages for bodily injury.

b)		Partial Defences
i)		Provocation

Provocation is conduct closely related in time to the tortfeasor's act, which would cause a reasonable person to lose his self-control and act out of anger and frustration. It arises most frequently in respect of actions for battery. Provocative conduct includes not only speech such as insults, abusive language, blasphemous taunting, and the use of racial or ethnic slurs but also conduct such as obscene gestures, adulterous actions, acts of betrayal, and outrageous conduct targeted at a close family member of the defendant. Conduct that creates a fear of immediate violence will not normally be characterized as provocation because an assault gives rise to the right of self-defence and the propriety of the defendant's conduct will be assessed on that basis.

Provocation provides only a partial defence to the intentional interference with the person. This is a wise policy. A complete defence would tend to promote violence. There would be no incentive to exercise self-control and restraint in the face of provocative conduct. Nevertheless, it is common experience that, if you are abusive to others and taunt them, they may react violently, and Canadian courts are in agreement that there should be some reduction in damages where the plaintiff is partially to blame for the violence. There is no agreement, however, on the manner in which the reduction of damages is to be made. In the 1970s the prevalent approach championed by the Courts of Appeal of Manitoba [Note 100: 1 Check v. Andrews Hotel Co. (1974), 56 D.L.R. (3d) 364 (Man. C.A.). ] and Ontario [Note 101: 1 Shaw v. Gorter (1977), 16 O.R. (2d) 19 (C.A.); Landry v. Patterson (1978), 22 O.R. (2d) 335 (C.A.).] was that provocative conduct justified withholding aggravated and punitive damages but did not justify any reduction of compensatory damages. This approach emphasized the compensatory function of tort law and indicated an unwillingness to reduce compensation to the plaintiff. More recently, the Courts of Appeal of Alberta, [Note 102: 1 Hougen v. Kuehn, [1997] A.J. No. 982 (C.A.) (QL).] Newfoundland, [Note 103: Hurley v. Moore (1993), 112 Nfld. & P.E.I.R. 40 (Nfld. C.A.).] and British Columbia [Note 104: Bruce v. Coliseum Management Ltd. (1998), 165 D.L.R. (4th) 472 (B.C.C.A.).] have favoured, additionally, a reduction in compensatory damages by the degree to which the plaintiff is responsible for the loss. This approach, which treats provocation similarly to contributory negligence, emphasizes corrective justice between the litigants and recognizes that where both have acted wrongfully, an award of full compensatory damages unduly discounts the plaintiff's degree of responsibility. In respect of intentional torts, where liability insurance plays such a minimal role, the latter view has much to commend it.