Bill C-26 (S.C. 2012 c. 9)
Reforms to Self-Defence and
Defence of Property:
Technical Guide for Practitioners
d. Self-Defence– Detailed Examination of New Section 34 of the Criminal Code
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;
Test for the triggering threat
No change from old law.
Under the old self-defence provisions, the trigger for action in defence of a person was variously framed under the most frequently invoked versions of self-defence as either
"every one who is unlawfully assaulted" (old subsection 34(1)) or
"under reasonable apprehension of death or grievous bodily harm" (old subsection 34(2)).
The old trigger conditions either expressly required or were interpreted by courts to require the accused to have an honest and reasonable belief as to the existence of an assault or threat of death or grievous bodily harm. The corollary to an honest and reasonable belief is that beliefs that are reasonable but mistaken will still allow the defence to be raised.Footnote 6
The new law retains the test for the self-defence trigger. It expressly requires that the triggering threat be assessed on a combined subjective (i.e. what the accused honestly believed) and objective (i.e. would the "reasonable person" also share the accused's belief) basis, consistent with the various versions of the old defence.
However, as a consequence of collapsing all defences into a single defence, the new law no longer distinguishes between differing levels of threat. Regardless of the nature or extent of the threat that a person perceives, the same test governs this first element of the defence in all cases.
However, under the new law, the nature and degree of the threat may impact differently upon the determination of whether the accused genuinely responded with a defensive purpose (under paragraph 34(1)(b), and whether the actions taken were reasonable in the circumstances (under paragraph 34(1)(c) and as set out in the list of factors under subsection 34(2)).
The expressions "force is being used" and "threat of force is being made" are intended to be interpreted in accordance with the use of similar expressions and concepts in the assault provisions (section 265).
Elimination of "unlawful" assault requirement
The new law eliminates the notion of "unlawful assault" which was a required element under old subsections 34(1) and(2) (but not under old section 35).
Reasons for change:
- The requirement under the old law that the force threatened was "unlawful" complicated the fact finding process, especially when combined with a mixed subjective/objective assessment of the threat. The accused's subjective belief (which must be objectively grounded) about the "unlawful" nature of the attack coming from the victim became a live issue. This in turn meant that the accused's perception of the attacker's intentions and perceptions also become a live issue. This was especially challenging in cases involving small scuffles that escalated into violent confrontations, where it became critical to determine whose conduct first amounted to an "unlawful assault", as that in turn governed which person has recourse to which version of the defence.Footnote 7
- The requirement for "unlawful assault" might have also unfairly limited the defence in rare cases, such as cases where a person who unlawfully committed a relatively trivial assault against another was actually in a much weaker position relative to the person assaulted. Where the person assaulted used the initial assault as an excuse to respond with force of their own, the initial aggressor may have subsequently needed to use defensive force to protect him or herself, even though they might be responsible for starting the altercation and thus might be responding to force that is potentially "lawful"because it might technically have been force used in self-defence. A rigid and abstract legal determination that focussed on whether one party was acting "unlawfully" may have failed to take into account relevant subtleties of the particular circumstances. It may also have posed difficulties in relation to attacks by persons below the age of criminal responsibility or suffering from delusions or otherwise not responsible for their conduct by reason of mental disorder.
- Notwithstanding its interpretation by the SCC in McIntoshFootnote 8 , the longstanding existence of section 35 signalled Parliament's view that there was at least one type of circumstance in which an initial aggressor may rely on self-defence against an assault that was not unlawful. As a result, unless the new law (which provides one single defence for all circumstances) eliminates the requirement for the attack to be "unlawful", it could potentially deprive an accused of the right to act in self-defence in rare circumstances such as where they instigated the fight but subsequently needed to act defensively, or in other circumstances where the "unlawful" nature of the attack was difficult to determine.
It is crucial to note that removal of the element of "unlawful assault" does not reflect Parliament's view that the facts surrounding the instigation of the assault are not relevant or that self-defence may regularly be invoked against lawful touchings. . Rather, the requirement was removed primarily to simplify the fact-finding process, and secondarily to allow for the defence to be raised in rare cases where this it might be appropriate, notwithstanding that the person was responding to force that might have been lawful.
There are very few situations in which an unwanted touching, which is by definition an assault, will not be unlawful. However, since the elimination of "unlawful assault" in principle permits a defensive response to lawful applications of force, a number of other features of the new law were introduced specifically to minimize the situations in which such conduct could be permitted:
- Paragraph 34(1)(b) – the defence now requires some evidence that the accused's purpose was defensive in nature (e.g. resisting an attempt by a shopkeeper to make a citizen's arrest after a theft in order to escape would not satisfy this requirement)
- Paragraph 34(2)(c) allows for consideration of the accused's role in the incident in determining whether their actions were reasonable (e.g. if the accused instigated the confrontation)
- Paragraph 34(2)(h) allows for consideration of the accused's knowledge of the lawful nature of the force they are responding to in determining whether their actions were reasonable (e.g. orderlies in hospitals may have the authority under common law or provincial legislation to use force to restrain patients who pose a danger to themselves or others; the patient's knowledge that orderlies have this authority may be relevant to assessing the reasonableness of their defensive responses to such actions)
- Paragraph 34(3) expressly limits the most likely scenario involving a claim to self defence against lawful conduct, i.e. cases involving the reactions against the use of force by the police.
These provisions are discussed in greater detail later in this Guide.
Key Quotes (Parliamentary Consideration)
House of Commons Standing Committee on Justice and Human Rights, March 6, 2012:
Joanne Klineberg, Senior Counsel, Department of Justice:
Professor Stewart also testified before you that self-defence should be limited to responses to unlawful assaults. It is certainly true that the overwhelming majority of self-defence cases involve responses to unlawful attacks. These are precisely the situations that lead people to need to react defensively. It's natural to assume that this should be a limiting condition of self-defence.
However, there are rare circumstances in which a person should be entitled to act defensively against an attack that is not necessarily unlawful. Section 35 of the Criminal Code, one of the four sections on self-defence today, speaks directly to one such situation, namely where the initial instigator of an assault subsequently needs to act defensively because of the response of the other person. I would be pleased to provide further examples of such situations if you have additional questions on that.
The unlawful attack element is also removed because it causes a great deal of difficulty under the current law. This element complicates trials unnecessarily by placing the focus on the early stages of a confrontation. In asking the jury to determine who attacked whom first, the jury must look to which actions constituted the first assault. This in turn requires the jury to determine what the accused believed about the intentions of the other party. It's far preferable to focus attention on the thoughts and actions of the defender at the time when they committed the actions they are charged with.
The removal of this element is not a cause for concern for two reasons. First, the new law of self-defence would include an explicit "defensive purpose" requirement. This means that in any case where a person uses force against someone acting lawfully, they will not have the benefit of self-defence unless they were found to be genuinely acting defensively, and not for another purpose.
The second assurance is located in proposed subsection 34(3), which deals with the most common claims of self-defence against lawful conduct, namely against police action such as arrest. The new law would make it clear that in the case of police action, self-defence is only available if the defender reasonably believes the police are acting unlawfully, such as by using excessive force.
Defence of Others
Under the old law, defence of a third person was provided for by section 37, which stated that a person may use force
"to defend… anyone under his protection from assault". The phrase "under his protection" was subject to varying interpretations.
The new law applies not just to acts in defence of oneself, but also where a person acts in defence of a third person, without any special or different qualifications or requirements. The accused must reasonably perceive a threat against the other person, must act with a defensive purpose, and their actions must be reasonable in the circumstances.
Reasons for change: This change reflects the way in which the new law adopts a simplified approach to self-defence. The new framework of the defence is one that can be applied to cases where actions were taken in defence of third party.
34(1)(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;
Under the old laws, there was no express "defensive purpose" requirement. Rather, a defensive purpose was implied by combination of the physical and mental elements of the applicable defence. Under the new law, only force which is actually used for the purpose of self-defence (or defence of another) is permitted.
Reasons for the change: An express purpose requirement is intended to ensure that the defence succeeds only where the actions were taken for a genuinely defensive purpose. It ensures that where triggering circumstances are present (i.e. a reasonably based belief in a threat or application of force) but the primary purpose of resistance is something other than defence of a person's bodily integrity, the defence will not succeed. For instance, if a petite woman commences shoving her much larger boyfriend, but due to her small size she presents no real threat to his bodily integrity and there is no risk of harm or injury, and the boyfriend responds to her force by punching her repeatedly, he would need to introduce some evidence that he was acting for the purpose of defending himself (rather than simply using the shoves as a pretext to respond violently) for his claim of "defensive purpose" to be found credible.
The use of the definite article "the" before "purpose" is intended to be interpreted such that in order for the defence to succeed, the accused's sole purpose is, or, where there is more than one purpose, the accused's dominant or controlling purpose, is to defend themselves or another person from the perceived threat.Footnote 9
34(1)(c) the act committed is reasonable in the circumstances.
"Reasonable in the circumstances"
Under the old laws, the measure for acceptable defensive force was articulated in various ways. In some versions of the defence it was framed as "no more force than necessary" or "as much force as is necessary". In others, it was framed in terms of conditions indicating a blend of necessity and proportionality (i.e. between a reasonably perceived threat of death or grievous bodily harm and the belief that the person cannot preserve himself from death or grievous bodily harm other than by killing).
In recognition of the difficulties involved in accurately assessing the precise amount of necessary or proportionate force in the heat of a confrontation – i.e. not so little so as to make defensive action unsuccessful, but not any more than is required to enable the person to defend themselves successfully – courts were compelled to soften the tests with the adoption of the principle that a person in a threatening situation need not "weigh to a nicety" precisely how much force is necessary.Footnote 10 As a result, despite what appeared to be clear language in the Code, proportionality between the threat and the response or the necessity of the response given the threat were not in actuality to be strictly measured. Rather, some degree of flexibility had to be accorded to the accused in these assessments.
Reasons for the change: Under the new law, "reasonable in the circumstances" replaces the various combinations and expressions of "necessary" and "proportionate" force.
There are two reasons for this change. First, the concept of "reasonableness" is both slightly broader than the concepts of necessity and proportionality, and it is also more flexible. In effect, reasonableness is a larger concept that would logically include considerations of necessity and proportionality, as well as other relevant factors. The test asks whether the "reasonable person", if placed in the accused's situation, would have acted in a similar manner. The less a defensive response is proportionate to the threat or necessary to enable the person to defend themselves in those circumstances, the less likely it is to be characterized by the trier of fact as "reasonable" in the circumstances.
Secondly, the SCC in recent years appears to have already begun to equate "proportionality/necessity" in the defences with "reasonableness". It may be that the Court headed in this direction in recognition of the fact that the added "flexibility" that Baxter and other cases demand dilutes the notions of proportionality and necessity to such a degree that they become essentially analogous to reasonableness. The relevant SCC jurisprudence is set out below and may be helpful in explaining to courts that the new law is intended to be interpreted and applied in manner that closely matches the old law.
In the unanimous decision of the SCC in GunningFootnote 11, the Court first suggested that reasonableness could be substituted for the concept of "no more force than is necessary" in the context of the defence of property (dwelling house) under section 41 of the Code.
41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
Despite the clear wording of the legislative text, the Court set out the elements of the defence in the following words at para. 25:
There are four elements to the defence raised by Mr. Gunning: (1) he must have been in possession of the dwelling-house; (2) his possession must have been peaceable; (3) Mr. Charlie must have been a trespasser; and (4) the force used to eject the trespasser must have been reasonable in all the circumstances. Only the fourth element was really contentious in this case — the reasonableness of the force used. (emphasis added).
Later in the decision, when the Court is applying the law to the facts before it, the unanimous Court says again:
"The fourth element, the reasonableness of the force used, was more contentious" (at para 37), and again at para 38: "However, all of the events preceding the shooting had to be taken into account in determining whether Mr. Gunning had used reasonable force in his attempt to eject Mr. Charlie. In the end result, in determining whether there was any air of reality to this fourth element of the defence of property (i.e., the reasonableness of the force used to eject the trespasser), it becomes clear that the trial judge overstepped his role…."(emphasis added).
Five years later, in SzczerbaniwiczFootnote 12, a case dealing with another version of the defence of property (section 39, which also uses the phrase "no more force than is necessary"), a majority of the SCC takes the approach one step further by expressly recognizing a shift toward "reasonableness" (emphasis added):
Section 39(1) is found in the Criminal Code together with other provisions setting out how the use of force in the defence of property and persons can be justified. While s. 39(1) itself has yet to be interpreted by this Court, there is helpful analogous jurisprudence dealing with these other provisions, most of which use similar or identical language to the phrase "no more force than is necessary" found in s. 39(1). Nothing in the language of s. 39(1) suggests that the meaning of the words "no more force than is necessary" is different from these other provisions.
 One of the early — and cogent — examinations of the meaning of the phrase is found in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). In Baxter, several of the Criminal Code's defence of property and person provisions were at issue, including s. 34(1) (dealing with self-defence against unprovoked assault) and s. 41(1) (dealing with defence of house or real property). In interpreting these provisions, Martin J.A. observed:
The sections of the Code authorizing the use of force in defence of a person or property, to prevent crime, and to apprehend offenders, in general, express in greater detail the great principle of the common law that the use of force in such circumstances is subject to the restriction that the force used is necessary; that is, that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or harm it is intended to prevent . . . . [p. 113]
 The "proportionality" approach has more recently been characterized as an inquiry into whether the force used was "reasonable in all the circumstances", as Charron J. confirmed in R. v. Gunning, 2005 SCC 27 (CanLII), 2005 SCC 27,  1 S.C.R. 627, at para. 25, a case involving s. 41(1). (See also: R. v. George 2000 CanLII 5727 (ON CA) , (2000), 145 C.C.C. (3d) 405 (Ont. C.A.), at para. 49; R. v. McKay, 2009 MBCA 53 (CanLII), 2009 MBCA 53, 246 C.C.C. (3d) 24, at para. 23.)
 The reasonableness of "all the circumstances" necessarily includes the accused's subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required: the subjective belief must be based on reasonable grounds. (See: McKay, at paras. 23-24; George, at paras. 49-50; R. v. Born with a Tooth 1992 ABCA 244 (CanLII), (1992), 76 C.C.C. (3d) 169 (Alta. C.A.), at p. 180; R. v. Kong, 2005 ABCA 255 (CanLII), 2005 ABCA 255, 200 C.C.C. (3d) 19, at paras. 95-100, appeal allowed on other grounds, 2006 SCC 40 (CanLII), 2006 SCC 40,  2 S.C.R. 347.)
An important feature of the shift toward "reasonable in the circumstances" in the new law is the removal of the accused's subjective beliefs as a required element. It is clear that "reasonable" is an objective test. However, in paragraph 21 above from Szczerbaniwicz, the SCC makes clear that even where the test is objective, the subjective perceptions of the accused (so long as they are also objectively reasonable perceptions) remain relevant to the assessment of whether their actions were reasonable in the circumstances. The new law codifies this approach, which is consistent with the general approach of the new law to treat as many factors as possible as "relevant considerations" rather than rigid requirements for the defence.Footnote 13
Acts vs. force
The old laws explicitly authorized defensive "use of force", as expressed in various ways, such as "no more force than is necessary" and "causes death or grievous bodily harm". The concept of "force" is generally understood in criminal law terms to refer to direct or indirect (i.e. through the use of a weapon) touchings of the body.
The new law modifies this aspect of the defence and authorizes defensive action of any type – "the act committed is reasonable in the circumstances". The defensive response need not be characterized as "use of force". In the overwhelming majority of cases, a defensive response to a threat will manifest as force against the attacker, but this may not always be the case. For example, when facing a threat of force, a person may be in a position to steal a car to flee or break into a house to seek refuge.
Reasons for change: Courts already appear to accept varieties of defensive conduct, at least in the context of defence of property. In Gunning, the defence of property was held to be available to charge of careless use of a firearm. The handling of the firearm was never characterized as amounting to "force" against the trespasser in accordance with the requirements set out in the legislative text. This demonstrates that the SCC appears to have been willing to show some flexibility in interpreting and applying the wording of the old laws, and allowing the defences to be raised in defence to a broader category of offences than the wording of the law seemed to permit. The new law incorporates this more flexible approach to defences.
It could be that the common law defence of necessity would otherwise provide a defence for non-force responses to threats to bodily integrity emanating from other people. However, the new law seeks to incorporate such conduct into the defence of person provision. This avoids the possible complications associated with having to argue different defences, which set out different elements and thresholds, for different forms of conduct in response to the same threat (e.g. if a person threatened uses force and also commits breaks into a house to seek refuge where the force did not stop the attack).
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:
The new law includes a list of factors that could be taken into account in determining whether the act committed was reasonable in the circumstances. The list is expressly non-exhaustive, meaning that factors not on the list are still able to be put in evidence wherever relevant and otherwise admissible in accordance with general rules of evidence. Items on the list are not intended to be treated as "more significant" or otherwise as having elevated relevance or weight relative to factors not on the list, or to each other.
Some items on the list reflect existing Canadian jurisprudence on considerations that are frequently present in conflict situations, while others reflect factors that are less frequent but which, when they do arise, are highly relevant.
Reasons for change: As noted above, a "reasonableness" test for the defensive response appears to reflect an approach consistent with that taken by the SCC. However, because it does represent a change to the text of the law, consideration was given to including a mechanism to facilitate the transition to the new law.
In this respect, the new law includes a list of factors that could be taken into account to assess "reasonableness". The list serves several purposes. It aims to make clear that certain jurisprudence applicable to the determination of a successful defence is intended to continue, as appropriate, under the new law. It also serves to provide some guidance about how the new law is intended to be applied by clarifying that some of the elements of the old law that have been eliminated as determinative requirements nonetheless continue to be relevant. It may also serve as a useful reference for jury instructions.
34(2)(a) the nature of the force or threat;
The nature of the threat to which the accused responds is clearly relevant to assessing the reasonableness of their reaction. The accused's subjective perception (objectively verified) of the existence of a threat is already a required element under new paragraph 34(1)(a). Including the "nature of the force or threat" in the list of factors, a slightly more nuanced consideration, further ensures that this element is part of the overall assessment of the reasonableness of the defensive response.
34(2)(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;
Imminence of an attack was long thought to be a required element of self-defence until the SCC ruled in Lavallee that it was only a factor to be considered, as opposed to a requirement that could be determinative of the success of a self-defence claim.Footnote 14 The first portion of paragraph (b) –
"the extent to which the use of force was imminent" – codifies this aspect of Lavallee. Codifying that imminence is a factor to consider is intended to ensure that the courts do not treat it as a rigid requirement under subsection 34(1), as they did under the old law before the Lavallee decision.Footnote 15
The second portion of this paragraph –
"whether there were other means available to respond" – could refer to a person's ability to retreat from the threat. Ability to retreat was a necessary condition for invoking the defence under section 35 of the old law, but not for other versions of the defence under the old law (specifically old section 34). Ability to retreat or to respond by means other than the commission of an offence has been held by Canadian courts to be a relevant factor to a self-defence claim, but not a determinative requirement. Paragraph (b) of the list of considerations codifies the understanding that "other options" and "retreat" may be relevant to a defence of person claim, but are not determinative.
The two elements – i.e. imminence and ability to retreat or other options – are grammatically specified as separate and distinct factors, but are linked together in paragraph (b) because factually they are often intertwined and logically, the less imminent the threat is, the more likely there are to be other possible responses. However, as these are factors to consider and not rigid requirements, the relationship they have to each other in any given case is a flexible matter that depends entirely on their relevance to the facts of that case.
Key quotes (Parliamentary Consideration)
Senator Joan Fraser, Senate Debates, June 12, 2012:
(Note: This passage is also relevant to paragraph 34(2)(f))
I was particularly anxious to have clarity on the impact of the proposed new self-defence provisions on what are often known as battered women defences, basically concerning spousal assault and to some extent dating violence, but mostly spousal assault.
This is a serious problem in this country, honourable senators. In 2010, police reported approximately 48,700 victims of spousal violence in this country and, if you hear people talk about the battered women defence, it is not because men are immune from spousal violence. Some men do suffer violence at the hands of their spouses, but women aged 15 and older in 2010 accounted for 81 per cent of all those police-reported victims.
Now, in the Lavallee case, to which Senator Di Nino and I think others have made reference, back in 1990 the Supreme Court addressed many of the myths about spousal abuse, spousal violence and self-defence arguments that could be brought in those cases by the abused spouse. Ms. Lavallee was a woman who had been repeatedly and severely abused, and one night her partner told her that later that night he was going to kill her, and she believed him, so she shot him, dead. This case went all the way to the Supreme Court, and it was a landmark judgment instructing courts to take into account expert testimony about the effect of being an abused spouse, a feeling of having nowhere to go, nowhere to turn, no escape, and sometimes being driven to commit very serious violence in order, one believes, to defend oneself, even if that defence is not specifically necessary because one is not being abused at that precise moment.
I was quite concerned about the impact of two of the factors that judges are told to take into consideration, because I wondered if they might be contradictory, and Senator Jaffer referred to these. In proposed section 34(2)(b), the judges are asked to take into account if the circumstances are appropriate, 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. That was clearly the one that made me wonder if we were weakening the grounds of defence for battered women.
I was only partly assuaged by the existence of proposed section 34(2)(f) which says the judge should take into account 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.
Therefore, I asked about how these two possibly apparently contradictory elements might play out. I asked officials from the Justice Department when they appeared before us how we should understand the interplay between these two things, and I think the answer that was given is worth reading into the record. It comes from Ms. Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada, who said:
Both of those factors are derived almost directly from the Lavallee case, which was the leading case from the Supreme Court.
For the first time, the Supreme Court gave an interpretation to the existing self-defence laws such that the situation of the battered woman could be taken into account. Essentially the court said that where battered women's cases had previously not resulted in a successful self-defence plea was because the jury could not appreciate how a reasonable person in that woman's situation would not have left the relationship sooner, or how they might have perceived they were at risk. The most important thing the Supreme Court determined in that case was that whenever there is an aspect of reasonableness in the law of self-defence, it is important to consider the particular circumstances of an abused person — and the nature of their relationship — and attribute that to the reasonable person.
That is essentially what 34(2)(f) is trying to get at; in determining what is reasonable you would have to consider the history of the relationship. Another thing the Supreme Court decided in that case was it had previously been assumed — although it was never in the wording of the Criminal Code — that the imminence of the assault was a necessary precondition for self-defence to be successful. The court in that case said that is an assumption; the paradigm self-defence case is one where it is eminent (sic).
However, a battered spouse situation is exactly one where the assault might not be imminent, but nonetheless the person would not reasonably feel themselves taking into account the history to have any option but to do what they did.
The factor that is enumerated as (b) was also specifically designed to reflect that aspect of the Lavallee case, by saying it is a factor to consider, the extent to which the attack was imminent, which in and of itself is meant to signal that imminence is not a requirement. If imminence were a requirement, it would be in 34(1) —
This is what Senator Di Nino referred to yesterday when he was setting out the act's absolute requirements for a self-defence.
— but because it is in 34(2) as a factor to consider, as opposed to a requirement of self-defence, it signals that imminence is a factor to consider and the person's perceptions about other options they might have had is also a factor to consider. I think our view would be that both of those factors are entirely consistent with the reasons of the Supreme Court in Lavallee.
Honourable senators, given that, as Senator Baker has so regularly instructed us, we know reference is sometimes made to debates in this chamber when thorny issues of law are being considered, I did think that was worth putting into the formal record of the Senate.
34(2)(c) the person's role in the incident;
This factor in part serves to bring into play considerations surrounding the accused's own role in instigating or escalating the incident. Under the old law, the distinction between section 34 and 35 was based on the defender's role in commencing the incident, creating higher thresholds for accessing the defence where the accused was the provoker of the incident, as opposed to an innocent victim. As the new law contains only one defence that does not distinguish between conflicts commenced by the accused and those commenced by the victim, this paragraph signals that, where the facts suggest the accused played a role in bringing the conflict about, that fact should be taken into account in deliberations about whether his or her ultimate response was reasonable in the circumstances.
34(2)(d) whether any party to the incident used or threatened to use a weapon;
The presence of weapons by any party to a conflict will likely be relevant to the determination of what would be an acceptable defensive response.
34(2)(e) the size, age, gender and physical capabilities of the parties to the incident;
The relative physical characteristics of the parties are obvious relevant considerations.
Note: The element "physical capabilities" was added through an amendment the House of Commons Standing Committee on Justice and Human Rights, March 8, 2012, between 1200 and 1205:
Mr. Jack Harris:
Thank you, Mr. Chair.
We've added this at the suggestion of the CBA. We did have some discussion about gender, and you can't just assume, because someone's one gender or another, that they're bigger or smaller or more or less capable. Size doesn't necessarily matter either. You could be a big character with disabilities or an inability to respond. The addition of physical capability seems to me to be aiming at what the section was trying to achieve by saying that it has to take into account the person's circumstances. If size, age, and gender are important, then the physical capabilities certainly would be too.
I'll leave it at that.
Go ahead, Madam Findlay.
Ms. Kerry-Lynne D. Findlay:
We agree with this. I think the wording of it is good: "physical capabilities." As you have mentioned, Mr. Harris, you could be a small person with a black belt in karate or something.
Mr. Jack Harris:
Ms. Kerry-Lynne D. Findlay:
You may have a physical capability that the other person doesn't have, one that isn't necessarily covered just by the wording of "size", for instance. It adds to a non-exhaustive list of the circumstances for the court to take into account. That seems reasonable, and when you put it together with the other factors that are enunciated and the nature and proportionality of the person's response to that threat, it makes a lot of sense.
We're supportive of this amendment.
34(2)(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;
Generally speaking, the courts recognize that evidence about the relationship and history between the parties is crucial for putting the conflict in its proper context.
The specific reference to
"any prior use or threat of force and the nature of that force" in this paragraph also serves to signal that Parliament was aware of the relevance of the history between the parties in the context of abusive relationships. In the Lavallee case, the SCC made clear that evidence of an abusive history between the parties, and expert evidence about the dynamics of domestic abuse on the victim, contextualize the accused's experience so as to allow their actions to be viewed and understood as objectively "reasonable" in the circumstances.
Paragraph 34(2)(f) makes clear that the history of the relationship, and any abuse within it, are relevant to assessing the reasonableness of the accused's defensive actions, and thereby signals that courts should continue to apply the principles from Lavallee under the framework of the new law. (Of course, this evidence may also be relevant to assessing the reasonable belief about an incoming threat under paragraph 34(1)(a) and the subjective defensive purpose under paragraph 34(1)(b)). While the new law does not expressly address the admissibility of expert evidence, the normal rules of evidence should ensure that such evidence is admissible where it otherwise meets the requirements of expert evidence in any given case.
Please see paragraph 34(2)(b) above for the relevant Parliamentary excerpt.
34(2)(f.1) any history of interaction or communication between the parties to the incident;
While paragraph 34(2)(f) speaks to the relationship between the parties, paragraph 34(2)(f.1) refers to the potential for the parties to have a more peripheral connection to each other than that which would be implied by the word "relationship".
This factor was added through an amendment by the House of Commons Standing Committee on Justice and Human Rights during its study of the legislation. See discussion on March 8, 2012 between 1205 and 1235.
34(2)(g) the nature and proportionality of the person's response to the use or threat of force; and
Please see discussion above under paragraph 34(1)(c) – "reasonable in the circumstances".
This paragraph is intended to clearly signal that proportionality between threat and response remains a vital consideration in the new law.
Whereas proportionality between the threat and the response appeared to be a requirement under most versions of the old law, the core defence requirement under the new law is simply that the defensive actions be "reasonable in the circumstances". Proportionality is almost surely going to be a highly relevant consideration in every self-defence case. Indeed, proportionality between threat and response is a critical lens through which to assess whether the response itself was a reasonable one. It is difficult to conceive of a defensive action being reasonable if it is disproportionate to the threat, absent exceptional circumstances. Although not explicitly addressed in the new law, proportionality may also be relevant to assessing the accused's assertion that their actions were motivated by a defensive purpose; the more disproportionate the response relative to the threat, the more difficult it will be for the trier of fact to find that the purpose behind the response was defensive.
34(2)(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
This paragraph is in part responsive to the fact that the new law does not require that the incoming force be "unlawful", as does the old section 34 (but not section 35). This paragraph is not intended to overlap with the special rule for defensive action against police conduct (subsection 34(3)) below), as that special rule provides a complete test for those circumstances. Rather paragraph (h) may apply to other circumstances, which are sure to be rare, in which non-law enforcement personnel may have the lawful authority to touch others without their consent.
One possible situation could be the authority (under the common law or provincial statutes) of hospital personnel to use force to restrain patients. Other situations in which this factor may be applicable are where a person uses force against someone who themselves may be acting to defend property (under new section 35) or who is attempting to make a citizen's arrest.
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.
The elimination of the "unlawful assault" requirement as part of the triggering threat element creates potential unwanted consequences in relation to resistance to police actions, because it could leave the impression that the new law will allow defensive reactions to lawful police conduct such as the making of an arrest. More specifically, if a person does not willingly submit to an arrest, they may have a reasonable perception that they are being threatened with force that is against their wishes and consequently meet the first requirement for the new defence under paragraph 34(1)(a).
While the requirement under paragraph 34(1)(a) may be met in these cases, the express "defensive purpose" requirement (paragraph 34(1)(b) may effectively rule out the defence in cases where the accused used force against the police in an effort to escape arrest or to otherwise evade or frustrate whatever action the police are undertaking. This is because the defensive purpose element requires the accused to present some evidence that their dominant purpose was to protect their bodily integrity from the incoming force, as opposed to the purpose of escaping capture, for instance.
Even though the "defensive purpose" requirement may be enough to ensure that the defence fails in cases where force is used to escape or impede law enforcement activity, subsection 34(3) provides an additional layer of protection against inappropriate uses of self-defence in these cases by directing the inquiry to the unique considerations such cases raise. On the one hand, the law must permit a person to defend against any unwanted touchings, even of a trivial nature, because the application of any force without a person's consent is an assault and every person is entitled to govern their bodily integrity. On the other hand, the police must use force for certain purposes, such as when making an arrest.
This use of force by police is authorized by law, but is not unfettered. The use of force must be lawful both in the sense that the use of force in the circumstances must be a valid exercise of authority and that the manner and extent of force used must be reasonable to those circumstances. Police conduct that does not meet these requirements is unlawful, and citizens are legally entitled to resist such applications of force by the police where they reasonably believe such force to be unlawful in the circumstances.
The new rule provided by subsection 34(3) is consistent with the way the old law applied to these circumstances, but it accomplishes its objective in a different way.
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