Conclusion

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto
Pages:377-381
 
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Page 377

Unlike the defences of due diligence (chapter 6), extreme intoxication (chapter 7), mental disorder and automatism (chapter 8), accused do not have to establish the defences of self-defence, necessity, and duress on a balance of probabilities. They apply whenever there is a reasonable doubt about all of the requirements of the defence. The three defences

Page 378

examined in this chapter do not relate to the fault element of particular offences and they have both subjective and objective requirements. In general, they apply if the accused subjectively and reasonably responds to external pressures such as threats from other people (self-defence and duress), and circumstances of peril (necessity).

In administering the objective requirements of these defences, the Supreme Court has taken a modified and contextual objective approach that not only places the reasonable person in the same circumstances that the accused faced, but also invests the reasonable person with the same characteristics and experiences as the particular accused. This, of course, stands in contrast to the Court’s unwillingess to consider such factors when applying objective standards of liability.160The landmark decision in contextualizing the reasonable person was Lavallee,161which recognized that a woman’s past abuse could be relevant in determining whether she had a valid claim of self-defence against her abuser. This trend has been continued in the new section 34(2)(f) and (f.1) which requires consideration of the relationship and history of interaction including prior use or threat of force between the parties to the incident as well as section 34(2)(e) which requires consideration of the size, age, gender, and physical capabilities of the parties to the incident when determining whether an act of self-defence or defence of others was reasonable in the circumstances. The issue is not whether the accused can be classified as a battered woman, but whether in light of her experiences and characteristics, her actions and perceptions were reasonable.

New self-defence and defence of property provisions have replaced old provisions that the Supreme Court has candidly recognized were "unbelievably confusing."162The new provisions no longer attempt artificially to categorize and restrict self-defence. They are, however, based on the basic principles that an accused must 1) believe on reasonable grounds that either force or threat of force is being used against them...

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