Bill C-26 (S.C. 2012 c. 9)
Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners

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Department of Justice, Canada
March 2013

Executive Summary

Bill C-26, the Citizen's Arrest and Self-defence Act, S.C. 2012 c. 9, comes into force on March 11, 2013. The legislation replaces the old Criminal Code provisions on self-defence and defence of property with new and reformed defences.

Purpose of the Technical Guide

Comprehensive law reform necessarily results in a transitional period of uncertainty. The overall objective of the Guide is to promote, for legal practitioners, a common understanding of the purpose and effect of the reforms and a common set of arguments as to their application and interpretation, so as to produce meaningful and consistent jurisprudence as rapidly as possible, while avoiding both confusion and uncertainty.

To accomplish this objective, this guide describes the legislative intent behind the new law, a general overview of changes, and a detailed examination of each clause of the new defences, with references to:

Legislative Objective and Overview of New Defences

In passing Bill C-26, Parliament's primary intent was to simplify the legislative text that sets out the defences. Self-defence and defence of property span nine sections of the Criminal Code (sections 34 to 42). There are multiple distinct versions of each defence, each of which appears to be aimed at slightly different circumstances in which a defence claim might arise. For decades, this legislative approach to the defences has been criticized as being overly complex and detailed, and producing internally inconsistent versions of the same defence. This has caused problems for judges in crafting jury instructions, and errors in jury instructions gave rise to numerous unnecessary appeals. The public was not served by a legislative text which even judges had difficulty understanding and explaining.

Legislative Approach: Replacing Multiple Defences with Single Defence

Despite the problems with the wording of the law, there had been relatively few concerns about the application of the defences in actual cases. Courts and juries were generally perceived to make the right decisions by applying their common sense and experience. Parliament's intention in reforming the defences was to enact defences that express the fundamental principles that animate the laws of self-defence and defence of property so that the law itself corresponds to the approach taken by juries in deciding these cases. To achieve this objective, the new defences extract from the old provisions the common core elements of each defence, and codify those core elements in a single simple framework that is capable of assessing a defence claim in any situation. The new laws give effect to the defences' underlying principles in a more transparent way; they will facilitate jury instructions and allow decision-makers to come to conclusions more easily and simply.

Replacing numerous circumstance-specific defences with a single generally-applicable defence means that some of the former threshold requirements are no longer part of the defence as threshold requirements. However, the new laws still allow for consideration of elements which previously served to distinguish the different versions of the defences under the old law. Specifically, certain defence requirements under the old law (which could have been determinative of whether the defence succeeded or failed) are converted into factors that are not determinative in any case, but which may be taken into account in assessing the core defence elements, where relevant, on a case by case basis. For instance, under the old self-defence laws, different versions of the defence applied, depending on whether the attack was provoked by the accused or not, whether the accused had a reasonable apprehension of death or not, and where the accused started the confrontation, whether he or she retreated before using deadly force. Under the new generally-applicable defence, these elements are no longer threshold requirements that must be met for the defence to succeed, but they may be relevant considerations to be taken into account depending on the facts of a given case.

Core Defence Elements

The new defences are set out in a single basic rule. For defence of the person, the three core elements are:

The new self-defence law includes a non-exhaustive list of factors applicable to the determination of whether accused's actions were reasonable in the circumstances. This list is intended to ease the transition to the new law by setting out some relevant factors which are already well-established in jurisprudence or policy, or which were formerly threshold requirements under one of the old law's circumstance-specific defences. The list should help clarify the way in which previous jurisprudence is accommodated under the new law, and should also help guide judges in instructing juries and allow both judges and juries to come to determinations about the success or failure of the defence in any given case more easily.

For the new defence of property, the basic elements are the same as those for self-defence, except that the threat which triggers the defence must be a specified threat of property interference (rather than a threat of force against a person). Additionally, the new defence of property retains from the old law the requirement that the property defender be "in peaceable possession" of property at the time the interference is threatened.

Noteworthy Features of the New Laws

Some of the main features of both new defences are:

Text of New Self-Defence and Defence of Property Provisions


34 (1) A person is not guilty of an offence if

34 (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:

34 (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Defence of Property

35 (1) A person is not guilty of an offence if

35 (2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

35 (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.