B. Self-Defence
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 324-352 |
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The statutory provisions in the Criminal Code governing self-defence were notoriously complex. In 1995, the Supreme Court criticized them as "highly technical," "excessively detailed," and "internally inconsistent" and stated that "legislative action is required to clarify the Criminal Code’s self-defence regime."23The old provisions attempted
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to define the various circumstances in which an accused might act in self-defence. They drew distinctions on the basis of whether the accused intended to cause death or grievous bodily harm, or had no such intent. They also drew distinctions on the basis of whether the accused had assaulted or provoked the person against whom he or she claimed self-defence. In some cases, they imposed specific duties of retreat on accused. They also contained distinctions between self-defence and de-fence of third parties under the protection of the accused and between the protection of personal property and dwelling houses. Although not without any defenders, these attempts to classify the various situations in which a claim of self-defence might arise were often criticized as artificial and unnecessary.
Amendments to the Criminal Code in 2012, however, adopt a simpler approach based on one encompassing provision in a new section 34, governing defence of self and others, and a new section 35, governing defence of all forms of property. These new provisions simplify self-de-fence and defence of property considerably though at some expense to the predictability of the defences. As will be seen, the new self-defence provisions are less demanding of the accused than the defences of necessity and duress, which explicitly require proportionality between the harm inflicted and the harm caused and that there be no legal way out. The new provisions instead simply require that the acts of self-defence and defence of property be reasonable in the circumstances.
The new provisions retain the basic structure of the previous self-defence provisions because they require both that the accused act with the subjective purpose of defending self or others and that they must act reasonably both with respect to the perceptions of the threat and the response to the threat. A fully subjective approach to self-defence, though used in some jurisdictions,24could encourage hot-headed and unnecessary resort to violent self-help. The defences of necessity, duress, and provocation also similarly blend subjective and objective requirements. At the same time, the need for reasonable grounds and
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conduct in self-defence raises the difficult issue of whether and how objective standards should be contextualized to reflect the accused’s circumstances and characteristics. The new section 34(2) continues the trend in recent self-defence jurisprudence to allow objective standards to be contextualized to reflect the accused’s characteristics and history. It requires judges and juries to consider a variety of factors including the imminence and nature of the threat, whether there were other means to respond, and the proportionality of the force used by the accused to the force threatened against the accused while at the end of the day simply requiring that any act of self-defence be reasonable in all the circumstances. The new section 34 provides:
34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
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(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.25
Section 34(1) now contains one defence for self-defence and defence of others. It provides that accused are not guilty of an offence if a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; b) the act is committed for the purpose of defending or protecting themselves or the other person from the use or threat of force; and c) the act committed is reasonable in the circumstances.26
The new provision makes clear that self-defence can be claimed not only as a defence to charges of violent crimes such as assault or murder undertaken in self-defence, but also to any offence. Thus self-defence could apply if an accused stole a vehicle in order to protect him- or herself or others. In such circumstances, the theft could be justified under the new section 34 provided that the accused reasonably believed he or she was threatened and the theft was reasonable in the circumstances. This expansion of self-defence makes sense given that the alternative offence would often be a more proportionate response to real or threatened violence than the use of actual violence. The existence of less drastic means to respond to the potential use of force and the proportionality of the response are specifically enumerated factors under section 34(2)(b) and (g) in determining the reasonableness of self-defence. In some cases, the commission of a property or other of-fences to facilitate escape could be a preferred means of responding to a threat of violence than violent self-defence. The approach taken in Florida and a number of other states of extending the so-called Castle doctrine of no retreat beyond the home is ill-advised and can encourage unnecessary violent self-help.
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There are no restrictions on the offences to which section 34 can apply and, as under the old law, self-defence can apply to the most serious crimes including murder. As will be seen, it is an open question whether necessity or duress would be available to murder because of the explicit requirement of proportionality between the force threatened and the force used. In this way, self-defence is less demanding on the accused than common law duress and necessity perhaps because the victim in self-defence will usually be an aggressor.
The new section 34 departs from the old law in not making the accused’s intent to cause death or grievous bodily harm specifically relevant to the self-defence claim. Such determinations are best left to the determination of whether the accused has the fault required for the offence. The accused’s intent may be relevant in determining the reasonableness of the self-defence, but it is not enumerated in the non-exclusive list of factors in section 34(2). At most, the accused’s intent will be one among a range of factors that is relevant in determining the reasonableness of the act of self-defence.
The previous law on both self-defence and defence of property specifically incorporated the language of justification. As previously discussed, the Canadian courts have recognized a distinction...
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