THE RIGHT TO LIFE
Life is the most precious and the most important of all human rights; it is only when the right to life is ensured, that all other rights can be obtained and effectively enjoyed.
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being. The concept of right to life is central to debates on the issues of euthanasia, the death penalty, abortion, self-defense and war. Accordingly, the African Commission on Human and Peoples Rights observed in Forum of Conscience v. Sierra Leone that the right to life is the fulcrum of all other rights, it is the fountain through which all other rights flow.
Section 33 of the 1999 Constitution Federal Republic of Nigeria (As Amended) provides that:
"Every person has a right to life, and no one shall be deprived intentionally of his life, save in the execution of a sentence of court in respect of a Criminal offence of which he has been found guilty"
Article 4 of the African Charter on Human & People's Rights also provides that: "Every person has a right to life and no one shall be deprived of his life intentionally"
Article 2 of the Universal Declaration of Human Rights also ensures an individual's right to life thus:
"Everyone has a right to life, liberty and security of person"
Where does Personhood Begin?
In respect of the right to life of an unborn child, there are 2 schools of thought – Pro-Choice and Pro-Life. The Pro-life school opines that the government has an obligation to preserve all human life, regardless of intent, viability or quality of the foetus' life and the school also stringently prohibits abortion.
The Pro Choice school on the other hand, asserts that individuals have unlimited autonomy in respect to their reproductive system. Hence, the school supports abortion as long as it is effected within the pregnancy's first two trimesters. This opinion is hinged on the decision in the landmark case of ROE v. WADE. Facts of the case: The case was filed by Norma McCorvey, known in court documents as Jane ROE against Henry WADE; the district attorney of Dallas County from 1951 to 1987, who enforced a Texas law that prohibited abortion, except to save a woman's life. The U.S. Supreme Court, in a 7-2 decision, affirmed the legality of a woman's right to have an abortion under the Fourteenth amendment to the Constitution. The court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut protected by the Fourteenth Amendment). The decision gave a woman a right to abortion during the entirety of the pregnancy and defined different levels of state interest for regulating abortion in the second and third trimesters. Section 307 of the Criminal Code Act (Nigeria) seems to be in agreement with this position in providing that a person only becomes a human being when it is independent of its mother's body, whether or not the umbilical cord is severed. However, we must mention that as far as Nigeria is concerned, abortion is restricted and not outrightly prohibited.
Article 4 of the Inter-American Convention of 1969 - The Human Rights treaty which governs the South American Continent, and which is of Catholic roots posits that Human Life begins at the moment of conception. However, no one can pinpoint the exact moment where conception occurs.
The Death Penalty
According to Professor Akande, there are five offences present in Nigeria which are punishable by death. They are:
1. Murder - Section 316 of the Criminal Code
2. Treason - Section 37 & 49 of the Code
3. Treachery - Section 208 of the Code
4. Trial by ordeal - R v. Baganza
5. Giving or fabricating of false evidence with results in the conviction and execution of an innocent person.
6. Abatement of the suicide of a child or an insane person.
In all these cases, the death penalty can be applied as an exception to the right to life. However, children under the age of 17 years at the time of the commission of the offence cannot be sentenced to death, and any sentence on a pregnant woman must not be effected until she has been delivered of her child.
There is a raging controversy about the continuance of the death penalty as a means of punishment all over the world. The entire European Continent have abolished the death penalty and about 18 African countries have abolished the death penalty as a penal disposition. There is a moratorium on the death penalty in about 20 other African countries, Nigeria inclusive. This was put in place by the Obasanjo administration in 2004, and in 2012, the Edo State Government recommended the execution of prisoners. In Catholic Commission for Justice and Peace in Zimbabwe v. AG, the Zimbabwe, the Supreme Court stated that the delayed execution of the prisoners and the degrading conditions under which they were held was unconstitutional. In the cases of Draff v. AG. Jamaica and State v. Makwanyare, the courts held unanimously that the death sentence was unconstitutional and it amounted to cruel and degrading treatment or punishment and affects the unqualified right to life guaranteed in Section 9 of the South African Constitution. In Nosiru Bello v. AG Oyo state, the deceased who was accused of armed robbery was executed while his appeal was pending. The court in this case called it a reckless disregard of life and liberty of a subject and principles of the rule of law and thereby unjustly depriving the defendant of his life.
Should the right to life be subject to the power of the state to kill? In states where democracy has taken its toll, the death penalty is usually abolished. The death penalty is tied to a totalitarian government as it has been a tool of suppression and depression. In the United States of America, 38 States out of 50 have abolished the death penalty. In the retentionist States, the rate of murder and unlawful killing is generally higher than that of the abolitionist States. Generally, around the world, the rate of murder is higher in retentionist Nations that in abolitionist Nations. The Constitution provides that the death penalty must be imposed by a duly constituted court of law and it must be duly passed. It should not be imposed by a mere military tribunal without confirmation of the sentences by the highest military council as the law requires. Sections 33(1) and 36(1) aligned show us the specifics of the concept of a court. A court differs from a tribunal in several ramifications. However, a tribunal guaranteed in such a manner to secure its independence and impartiality could carry out a court's functions. For the death penalty to be valid, it must have been pronounced by a duly constituted court for an offence that is prescribed by law.
The death penalty issue has not left the front burner of human rights discourse and the morality has not ceased to be discussed by people on the international scene. As seen in the cases of Furman v. The State of Georgia (1972) and in Gregg v. Georgia. In those two cases, both appellants had been sentenced to death. They challenged the death penalty as unconstitutional because according to them, it discriminates against black people. The court invalidated the death penalty on the footing that only the blacks were to face such punishment, the whites not being subjected to such punishment.
The Eighth Amendment to the U.S. Constitution prohibits "cruel and unusual punishment." At face value, this would appear to include killing people—that’s a pretty cruel punishment by most people’s estimation—but the death penalty is so deeply entrenched in British and American legal philosophy that the framers of the Bill of Rights clearly did not intend to prohibit it. The challenge the Supreme Court faces rests in properly restricting the use of this historically unassailable, but constitutionally problematic, form of punishment. In Furman v. Georgia, the Supreme Court struck down the death penalty altogether in 1972 due to the arbitrary enforcement of death penalty laws. As one might expect from a state in the Deep South in the mid-twentieth century, Georgia's arbitrary enforcement tended to correlate along racial lines. Justice Potter Stewart, writing for a Supreme Court majority, declared a moratorium on the death penalty in the United States:
"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race … But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed"
See also the case of Gregg v. Georgia: After Georgia revised its death penalty laws to address arbitrariness, Justice Stewart wrote again for the Court, this time reinstating the death penalty provided that checks and balances are in place to ensure that some objective criteria are used to determine its enforcement.
The basic concern of Furman centred on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way, the jury's discretion is channelled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here. The history of Supreme Court death penalty law over the past 40 years has centered on adhering to these basic criteria.
International Human Rights is moving at a great pace towards to total abolition of the death penalty. There exists a protocol known as the Second Optional Protocol which aims at abolishing the death penalty. The law enjoined ratifying states to expunge the death penalty from its respective penal processes and statutes. Incidentally, about 30 states have ratified the protocol. An International Non-Governmental Organization; Amnesty International has made the abolition of the death penalty a major plank of her stay. Thirty-eight (38) out of the 50 states in the US have expunged the death penalty from their respective statutes.
Some Nigerian cases have examined and challenged the constitutionality of the death penalty. In Peter Nemi v. The State, the basis of the challenge by Olisa Agbakoba, S.A.N., was that the sentence was unconstitutional because of the prolonged delay, thus the man had been sentenced to a cruel, inhuman, and degrading treatment.
When is a Death Sentence duly passed?
In the Nigerian jurisdiction, taking the case of the Ogoni 9 who were tried before the Civil Disturbances Tribunal as an example, the law states that for a sentence of death to be passed, it compulsorily has to be ratified by the Provincial Ruling Council (PRC) of the Abacha regime, and this procedure ought to be within 30 days but in this case, the Ogoni 9 were executed before the ratification. Gani Fawehinmi challenged the tribunal's decision in the case of Gani Fawehinmi v. PRC, but the court held that he had no locus standi. In addition, a minor offender may not be sentenced to death. In Mohammed Garba v. AG Lagos State, Longe J's judgment was given on 3rd of October 1990, where eight kid robbers were convicted and sentenced to death. Longe J said that the death sentence was contrary to international charter. Also, in R v. Bangaza, it was held that the material time for determining whether the offence was committed or not was the time of the commission of an offence. In Zamani Lekwot v. Judicial Tribunal. Lekwot challenged the death sentence imposed on him and other persons on the ground that the sentence had not been duly passed. Lekwot's contention was that it was against the tenets of Fair hearing. The court held that it was duly passed. In Nosiru Bello v. AG. Oyo State, Bello had been convicted and sentenced to death, then he appealed but before his appeal was heard, he had been executed. It was submitted that his sentence was not duly passed and consequently, the court held that the execution was unconstitutional.
The Right to Die
The right to die is an ethical or institutional entitlement of any individual to commit suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline life-prolonging treatment, where a disease would otherwise prolong their suffering to an identical result. The question of who, if anyone, should be empowered to make these decisions is often central to debate.
Proponents typically associate the right to die with the idea that one's body and one's life are one's own, to dispose of as one sees fit. However, a legitimate state interest in preventing irrational suicides is sometimes argued. Pilpel and Amsel write, "Contemporary proponents of ‘rational suicide’ or the ‘right to die’ usually demand by ‘rationality’ that the decision to kill oneself be both the autonomous choice of the agent (i.e., not due to the physician or the family pressuring them to ‘do the right thing’ and commit suicide) and a ‘best option under the circumstances’ choice desired by the stoics or utilitarians, as well as other natural conditions such as the choice being stable, not an impulsive decision, not due to mental illness, achieved after due deliberation, etc."
Reasons why People Commit Suicide
People commit suicide for various reasons but for the purpose of this text, it would be summarily classified into the following encompassing themes:
Shame or embarrassment
Cultural practices or beliefs
Shame or Embarrassment
Shame connotes the feeling of guilt, utter regret, or sadness that you have because a person knows he has done something wrong. A classical example of a situation whereby the element of shame pushed an individual over the edge up until the point of taking his own life, (and in this case multiple lives) is the Italian case of the Mani Pulite (clean hands) investigations involving two of Italy's best-known businessmen Gabriele Cagliari and Raoul Gardini. Cagliari was the chairman of Ente Nazionale Idrocarburi; a huge company, widely known as ENI. While Gardini was the chairman of Italy's second-largest private company, the Ferruzzi-Montedison food and chemicals conglomerate. Both men committed suicide after being implicated in corruption allegations involving top Italian political officers. Gabriele Cagliari, asphyxiated himself with a plastic bag in the confines of his jail cell. Gabriele Cagliari even left a suicide note to that effect; an excerpt of it read:
"The world was under my feet, I had the best of the best, now I am chained in prison like a dog in a kernel"
Mr. Gardini on the other hand put a gun to his head after looking at morning newspapers with banner headlines on what a former lieutenant of his, Giuseppe Garofano, was telling the police about his bribing of public officials after four days of questioning.
Some eccentric cultural practices and traditions also encourage, or right put; permit suicide in some extreme cases. The Asian nation of Japan has the highest suicide rate in the entire world and this can be traced to its popular sepuku cultural tradition with teachings entrenched in the ideology of "death over dishonor". Incidentally, in Tokyo, there is a mountain called the suicide mountain which is a favorite spot for aspiring suiciders. Another Japanese cultural practice, Harakiri which connotes the falling on his sword by a Japanese warrior to avoid being captured alive by enemy forces.
In India, there exists the cultural practice of Self-Immolation where a jilted woman sets herself ablaze in a vicious bid to take her own life. In Tibet, protesters have been known to set themselves ablaze in an overzealous aim to gain media attention and sufficiently convey their views. In the West African region of Nigeria, specifically in the Oyo kingdom, in 1951, there existed a tradition whereby the Alaafin's(King's) horseman (Eleshin Oba) was to accompany him to the grave in the event of his death. i.e. a form of ritual suicide.
Another reason people take their own lives is the aspect of religious expression. Hinduism for example accepts the right to die for those who are tormented by terminal diseases or those who have no desire, ambition or no responsibilities remaining; and allows death through the non-violent practice of fasting to the point of starvation (Prayopavesa). Jainism has a similar practice named Santhara. Other religious views on suicide vary in their tolerance, and include denial of the right as well as condemnation of the act.
In the Catholic faith, suicide is considered a grave sin. Followers of other Christian denominations have also been known to partake in some suicidal events which in most cases have been fuelled by radical leaders. Reverend Jim Jones, the leader of the People's Temple orchestrated the mass suicide of 913 of its members with cyanide in November 1978, in Jonestown, Guyana. In another isolated event on March 26, 1997, police discovered the bodies of 39 members of a religious group called Heaven's Gate who had committed mass suicide by drinking a poisoned liquid because they were sinful. They believed that the poisoned liquid wouldn't be fatal, but instead, cause a heavenly chariot to take them to heaven, much like in the Bible case of Elijah.
Samuel Taylor Coleridge in one of his poems wrote thus:
"It is better to die in the flower of youth on the chance of winning a noble name than to live at ease like sheep and die unloved and unrenowned"
Another writer commented:
"Heroes and martyrs offer themselves to death with such scorn that lesser men see as fool hardy".
During the second-world war, the Japanese employed the use of The Kamikaze against the Allied Forces. The Kamikaze orchestrated suicide attacks using military aviators against the allied naval vessels in the closing stages of the pacific campaign of World War II, designed to destroy warships more efficiently than was possible with conventional attacks. The pilots of these so called "suicide planes" literally sacrificed their own lives in a drastic act of heroism.
Euthanasia which originates from the Greek words "eu" (which means well or good) and "thannatos" (which means death) refers to the practice of intentionally ending a life in order to relieve pain and suffering from an incurable disease or vegetative state.
There are different euthanasia laws in each country. The British House of Lords Select Committee on Medical Ethics defines euthanasia as
"A deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering".
In the Netherlands, euthanasia is understood as "termination of life by a doctor at the request of a patient". In Nigeria, Sections 311, 326 and 329 of the Criminal Code prohibit any form of assisted suicide.
Euthanasia is categorized in different ways, which include: passive, active, physician-assisted or involuntary.
Passive Euthanasia - This involves the hastening of someone's death through the alteration of life support, thereby letting nature take its course.
Active Euthanasia - Involves causing death through a direct action in response to a direct request from the ailing patient.
Physician-assisted Euthanasia - This occurs when a physician supplies such patient suffering a terminal illness with information or a means of carrying out the suicide out.
Involuntary Euthanasia - Killing of a person who has not explicitly asked for it, often because such a person is an unconscious or vegetative state.
Voluntary euthanasia is legal in some countries, U.S. states, and Canadian Provinces. Non-voluntary euthanasia is illegal in all countries. Involuntary euthanasia is usually considered murder. In some countries there is a divisive public controversy over the moral, ethical, and legal issues of euthanasia. Those who are against euthanasia may argue for the sanctity of life, while proponents of euthanasia rights emphasize alleviating suffering, bodily integrity, self-determination, and personal autonomy. Jurisdictions where euthanasia or assisted suicide is legal include the European states of the Netherlands, Belgium, Luxembourg, Switzerland, Estonia, Albania, the US states of Washington, Oregon and Montana and starting in 2015, the Canadian Province of Quebec.
Landmark Right to Die Cases
Pretty v. UK
Diane Pretty was suffering from motor neurone disease and was paralyzed from the neck down, had little decipherable speech and was fed by a tube. It is not a crime to commit suicide under English law, but the applicant was prevented by her disease from taking such a step without assistance. It is however a crime to assist another to commit suicide (section 2(1) of the Suicide Act 1961). Pretty wanted her husband to provide her with assistance in suicide. Because giving this assistance would expose the husband to liability, the Director of Public Prosecutions was asked to agree not to prosecute her husband. This request was refused, as was Pretty's appeal before the Law Lords.
Judgment: In a unanimous judgment, the Court, composed of seven judges, has found Pretty's application under Articles 2, 3, 8, 9 and 14 of the European Convention on Human Rights admissible, but found no violation of the Convention.
Significant conclusions include that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention. As concerns Pretty's right to respect for private life under Article 8, the Court considered that the interference in this case might be justified as “necessary in a democratic society” for the protection of the rights of others.
Sue Rodriguez v. A-G., British Colombia
Sue Rodriguez was a 42-year-old mother who was diagnosed with Amyotrophic lateral sclerosis (ALS or "Lou Gehrig's disease") in 1992. By 1993 it was found that she would not live more than a year, and so she began a crusade to strike down section 241(b) of the Canadian Criminal Code, which made assisted suicide illegal, to the extent that it would be illegal for a terminally ill person to commit "physician-assisted" suicide. She applied to the Supreme Court of British Columbia to have section 241(b) of Criminal Code struck down as it violated sections 7 (the right to "life, liberty, and security of the person), 12 (protection against "cruel and unusual punishment"), and 15(1) of the Canadian Charter of Rights and Freedoms (equality).
Judgement: Justice Sopinka, writing for the majority, found that there was no violation of section 7. He first considered whether the prohibition on ending one's life engaged the right to security of person. He found that the prohibition had sufficient connection with the justice system by its impact on an individual's autonomy and right to life by causing physical and psychological pain. Sopinka, however, found that the provision did not violate any principles of fundamental justice. He examined the long history of the prohibition of suicide and concludes that it reflects part of the fundamental values of society and so could not be in violation of fundamental justice. He also rejected the claim that the provision violated the section 12 right against cruel and unusual treatment or punishment as a mere prohibition did not fall within the meaning of treatment. Lastly, he considered the section 15 equality challenge. He noted that the issue is best not resolved under this right, but in assuming that it did violate section 15 he found that it was clearly saved under section 1. He found that the objective was pressing and substantial, rational, and that there was no lesser means to achieve the goal.
Chief Justice Lamer held a dissenting opinion that Criminal Code section 241(b) had infringed on the section 15 and did not consider sections 7 and 12.
Justice Cory ruled that the right to die is as much a protected freedom under section 7 of the Charter as any other part of life. Justice McLachlin's judgment was that Criminal Code section 241(b) violates the section 7 right to security of the person and that this violation was not saved under section 1.
Some bodies and associations across the continents of the world exist which aid in the supporting of the proponents of the right to die, all of these bodies are members of World Federation of Right to Die Societies. Some of these bodies include:
South Africa: Dignity South Africa
South Africa: SAVES - The Living Will Society
Zimbabwe: Final Exit Zimbabwe
Hong Kong: Awakening Research Foundation Hong Kong Limited
Japan: Japan Society for Dying with Dignity (JSDD)
Ireland: Living Wills Trust (LWT)
United Kingdom: Friends at the End (FATE)
Israel: LILACH - The Israel Society for the Right to Live and Die with Dignity
Canada: Dying with Dignity
United States: Death with Dignity National Center
Australia: Northern Territory Voluntary Euthanasia Society
New Zealand: End-of-Life Choice, Voluntary Euthanasia Society of New Zealand Inc.
Columbia: DMD Columbia
Venezuela: DMD Venezuela
Limitations of the Right to Life
Permissible limitations on the right to life are contained in Section 33(2) of the 1999 constitution which provides that:
"A person shall not be regarded as been deprived of his life in contravention of this section... if he dies as a result of the use, to such extent and in such circumstance as are permitted by law, of such force as is reasonably necessary."
For the defence of any person from unlawful violence or defense of property.
In order to effect a lawful arrest or to prevent the escape of a person lawfully detained.
For the purpose of suppressing a riot or mutiny.
Defence of any Person (including self-defence) or Property
When a death occurs as a result of a person defending himself or another person due to reasonable apprehension of death or grievous harm as a result of the act of another person, right to life is not violated.
Section 286 of the Criminal Code provides that when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to as is reasonably necessary to repel the assault, provided that the force used is not intended and not likely to cause death or grievous harm. In Okonkwo v. State, the deceased forced himself into the house of the first accused person at about 12 midnight armed with a dagger. When challenged, he tried to use the dagger on the first accused who raised an alarm and enjoined him in physical combat. During the scuffle, other occupants of the compound including the appellant came to him in beating the deceased and tied him down. The first accused called the Police who came and put the deceased in their boot and later deposited his body at the mortuary. The trial court found the appellant and the first accused guilty of murder. On appeal, the Court of Appeal held that Section 30 of the 1979 Constitution which grants the right to life allows the use of reasonable force which was not found to be excessive here. Please note that for self-defense to apply, there must be a reasonable apprehension of death or grievous bodily harm; force used in repelling attack must also be reasonable and proportionate to the force used by the attacker. (Odu v. State). In Odu v. State, the appellant and 3 others were charged with conspiracy and murder. Allegedly, the 1st and 2nd appellants had seized the wristwatch and cap of the deceased. Two days later, whilst the deceased's brother and a witness were playing football, they noticed that the deceased was trying to retrieve his things from the 2nd appellant who had the cap on. The 3rd accused person kicked and slapped him, hitting him with a stick, the 1st appellant brought a dagger which the 2nd appellant used in stabbing the deceased. The 2nd appellant's plea of self-defense was rejected because there was no reasonable apprehension of death or grievous harm from the deceased's action. Thus, the nature of weapon used to repel the attack and disparity of strength is taken into consideration here.
Please note that when a person is unlawfully attacked without provocation, he can use such force as is reasonably necessary. If however, the attack causes reasonable apprehension of death and the person being attacked cannot by the method he is using preserve the life of the assailant, he is excused if death occurs. In Sunday Amala v. The State, the deceased had challenged the appellant as to what he was doing up on the palm tree and threw sticks at him. When he got down from the tree, a fight ensued during which the deceased died. The appellant raised the defenses of provocation, accident and self-defense, all of which were rejected by the trial court and the Court of Appeal. The Supreme Court held that there was no reasonable apprehension of death or grievous bodily harm.
For the defense of self-defense to hold, the following conditions must be fulfilled:
1. The original assault must be unlawful, i.e. it must not be authorized by law.
2. The assault must be unprovoked by the person accused of homicide.
3. There must be reasonable apprehension of death or grievous bodily harm.
4. Force used in repelling attack must be reasonable and proportionate to the force used by the attacker.
Defence of Property
The Criminal Code provides in relation to a dwelling place that it is unlawful for a person in peaceful possession of a dwelling house and anyone assisting him to use force as it believed to be on reasonable grounds to be necessary so as to prevent forcibly breaking and entering of the house. In Okonkwo v. State, the use of force was allowed since it was not the excessive. In Ahmed v. The State, the court held that the force used to repel attack of property by unharmed assailants was disproportionate, thus the appellant could not avail himself under this provision.
In relation to movable property, person in peaceful possession of it or anyone acting under his authority can use such force as is reasonably necessary to resist taking of the property by a trespasser or to retake it from the trespasser.
Death in the Process of Effecting a Lawful Arrest or to Prevent Escape of a person Lawfully Detained
Whenever a police officer effects the lawful arrest of a person committing a felony, to prevent escape, he can use force as is reasonably necessary. This protection is also extended to those helping him with such arrest. If the offence is punishable by death or not less than 7 years imprisonment, the officer may kill in the process of effecting arrests if there is no other means of arresting the offender. Please note that the test of reasonableness is objective, and it is for the courts to decide as to the necessity of the use of force. The police officer or arresting person is responsible for any excessive use of force. (S. 298 of the Criminal Code). Thus, in R v. NDO, killing an escaped felon was in the circumstance held to be murder; in R v. ANIOGO, it was held to be manslaughter.
Death as a Result of the Suppression of a Riot or Mutiny
Willfully killing as a result of a riot or mutiny is permitted by law. Thus, the Criminal Code provides that it is lawful to use force that is reasonably necessary and reasonably proportioned to danger apprehended so as to stop continuance of the riot of mutiny (Section 276 of the Criminal Code).Such measures can be taken either by a police officer, any person acting under the orders of a police officer, or any other person whether subject to military law or not in a situation where it is believed that serious mischief will result from the riot, and there is no time to procure the intervention from a police officer. Furthermore, it is lawful for a member of the armed forces or police force to obey the lawful command of a superior officer in relation to the suppression of a riot, unless it is unlawful and whether or not a command is lawful is not a question of law.