Bill C-26 (S.C. 2012 c. 9)
Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners
Department of Justice, Canada
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:
- aspects of the new law that mirror the old defences and explanation of aspects that are different from the old laws;
- key aspects of jurisprudence under the old law that are incorporated into the new law; and
- relevant excerpts from parliamentary consideration of the new law.
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:
- A reasonable perception of force or a threat of force against a person (subjective perception of the accused, objectively verified);
- A defensive purpose associated with the accused's actions (accused's subjective state of mind); and
- The accused's actions must be reasonable in the circumstances (objective assessment).
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:
- An even balance of subjective and objective considerations (but a different mix from the old law)
- A new express "defensive purpose" requirement
- Actions must be "reasonable in the circumstances"
- The defences encompass any "acts" that are undertaken to defend against the threat, not just "use of force"
- A special rule excluding the defences in the context of law enforcement conduct, unless the accused reasonably believes that the conduct is unlawful
Text of New Self-Defence and Defence of Property Provisions
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
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:
- (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
- (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
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
- (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;
- (b) they believe on reasonable grounds that another person
- (i) is about to enter, is entering or has entered the property without being entitled by law to do so,
- (ii) is about to take the property, is doing so or has just done so, or
- (iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
- (c) the act that constitutes the offence is committed for the purpose of
- (i) preventing the other person from entering the property, or removing that person from the property, or
- (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
- (d) the act committed is reasonable in the circumstances.
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.
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