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By David M. Paciocco
It would be an easy thing to write an article demonstrating how the law of self-defence is complex and convoluted. That would not be helpful because everyone already understands this. Perhaps the only thing that is certain about the law of self-defence is that the mess of provisions that describe the law are internally inconsistent, often redundant and always inscrutable. It is enough in making this point to observe that otherwise correct jury directions that are Aso unnecessarily complex and confusing [as to] probably divert... the jury from considering the real basis upon which the claim to self-defence was advanced@ can cause a conviction to be overturned: R v Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.); R v Pintar (1996), 110 C.C.C. (3d) 402 (Ont. C.A.), or to point out that Justice Watt provided a Acareful, comprehensive and lucid@ jury direction of some 40 transcript pages in length which fell into reversible error in one line in R v Cameron (1995), 96 C.C.C. (3d) 346 (Ont. C.A.). As the Court put it at 371:
There have been some efforts by appellate courts to assist trial judges. They have told trial courts that in reviewing instructions they will view them from the perspective of a reasonably intelligent lay person and not from the perspective of a law student schooled in the ambiguities and subtleties associated with the language of the Code: R v Elkins (1995), 26 O.R. (3d) 161 at 170 (Ont. C.A.). They have advised trial courts that they will not demand perfection: R v Jacquard. Despite this, there will still be numerous opportunities to fail, caused for no other reason than that the law in this area is simply too complex. Judges can assist themselves and juries by providing written copies of the sections to jurors (R v Cameron (1995), 96 C.C.C. (3d) 346 (Ont. C.A.)), although it is prudent to delete marginal headings first because they can be misleading: R v Jenkins (1996), 48 C.R. (4th) 213 at 222 (Ont. C.A.). Judges should also exercise extreme caution during a recharge, where errors are more likely to result in the verdict being overturned because the question that prompts the recharge demonstrates the importance of the issue to the jury: R v Hebert (1996),48 C.R. (4th) 204 at 211 (S.C.C.). There is no substitute, however, for trying to remain conversant with the complex case law. My primary intention in this paper is to attempt to provide the little assistance that I can by analysing and breaking down the elements of the major self-defence sections. In order to direct juries or render decisions in self-defence cases, it is also necessary to have a strong understanding of how the objective and subjective inquires relating to self-defence are conducted. I will therefore attempt, as well, to provide a summary discussion about how to resolve subjective and objective issues relating to self-defence.
Before beginning these formidable tasks, it is important to affirm the obvious, since it is often the obvious that gets missed. The ultimate burden of disproving self-defence rests with the Crown. If there is a reasonable doubt about whether the defence applies, the accused is to be acquitted. So long as there is an air of reality to the defence, either on the evidence presented by the Crown or by the defence, the defence is entitled to be considered. In any case where there is an air of reality to one or more of the self-defence justifications, judges must, in their directions (as a matter of law) and decisions (as a matter of prudence if not law) affirm that the burden of disproving self-defence is on the Crown.
In jury cases it is extremely important that this be done at the outset of the directions on self-defence, and it is prudent to do it again at the close of that portion of the charge. This is because it is natural, indeed, almost unavoidable, to lapse into phrases while describing the elements of the relevant defence which suggest that the burden is on the accused, things like, Aif the evidence establishes that the accused has been assaulted@ or Aif you believe the evidence of Miss X that [the assailant] was armed@. A conscious effort must be made to avoid using language like this, although it is not easy to avoid it entirely. Fortunately, where such lapses occur, a clear direction elsewhere in the charge that the burden is on the Crown to disprove self-defence beyond a reasonable doubt will frequently prevent an appellate court from finding that the jury has been misdirected: R v Jenkins (1996), 48 C.R. (4th) 213 at 231 (Ont. C.A.).
When, then, is there an Aair of reality@ sufficient to require a defence to be put? In R v Osolin (1993), 26 C.R. (4th) 1 at 33 (S.C.C.), Cory J provides this definition of the Aair of reality.@
Part I: THE ELEMENTS OF THE DEFENCES
Speaking generally, there are four separate provisionsdescribing when an accused can rely on the defence of self-defence. They can be categorized, albeit imperfectly because there is over-lap, as follows:
2. S.34(2) - self-defence where the accused does intend to cause death or grievous bodily harm;
4. S.37 - self-defence preventing an assault.
There are other provisions in the Criminal Code, like s.27, that are broad enough to apply in self-defence situations, although the Supreme Court of Canada has suggested that these provisions should not be used in self-defence cases: R v Hebert (1996), 48 C.R. (4th) 204 (S.C.C.).
B. Section 34(1)
Section 34(1) is not a defence to murder because it does not apply where the accused intends to cause death or grievous bodily harm. An accused person who does not intend to cause death or grievous bodily harm would not be guilty of murder apart altogether from the question of self-defence because she would lack the requisite mens rea for the offence. Where the subject of the force has died, this provision will be relevant only in cases where there is an air of reality to the claim by the accused that she did not intend to cause death or grievous bodily harm.
The section is not available where the accused has provoked the assault that he ends up defending against. If it is conceded that the accused has done so, this defence should not be considered.
Moreover, the section is confined to repelling Aunlawful assaults.@ If the act the accused is defending against is a Alawful assault@ being undertaken by the assailant [such as one undertaken lawfully in self-defence, or in defence of property, or in defence of another, or by way of reasonable corrective force] then this defence will not be available.
2. Elements of the Defence
The defence is only available where all of the following preconditions are met:
(b) the accused did not engage in an unlawful act which provoked the assault (objective inquiry), or in a lawful act that was intended to provoke the assault on her (subjective inquiry);
(c) the accused did not intend to cause death or grievous bodily harm (even though death or grievous bodily harm may have been caused) (subjective inquiry), and
(d) the accused used no more force than was necessary (objective inquiry).
Element (a): The Unlawful Assault
It is important to bear in mind that an accused person who is assaulted by threats or by threatening conduct can be the victim of an assault even though striking the first blow,: R v Stanley (1977), 36 C.C.C. 216 (B.C.C.A.).
(ii,) Reasonable belief in the assault is enough
The doctrine of reasonable mistake of fact applies to whether the accused was being Aunlawfully assaulted.@ Speaking generally about s.34, Chief Justice Lamer observed in R v Petel (1994), 26 C.R. (4th) 145 at 167-68 (S.C.C.) that the issue is Awhether the accused reasonably believed in the circumstances that she was being assaulted.@
(iii,) The assault need not be imminent (and may not need to be an Aassault@ at all).
In R v Lavallee (1990), 76 C.R. (4th) 329 (S.C.C.), the court held that it is not a necessary precondition to s.34(2) that the apprehended assault be imminent. The reasoning would appear to apply with equal force to s.34(1). Justice Wilson explained that the Aimminence@ rule at common law is designed to ensure that self-defence is really necessary, and is not an act of revenge. She recognised that it may be reasonable for persons to conclude that there will be an assault under circumstances where it will be necessary to make a pre-emptive strike to prevent it. Recently, in R v McConnell (1996), 48 C.R. (4th) 199 (S.C.C.), it was held that a pre-emptive strike could also be justifiable under s.34(2) in the prison environment where the accused responded with a fatal assault of their own to Aan assault by threat from someone having the present ability to carry it out, although the actual physical threat was not to be carried out at that exact moment.@
As Professor Boyle pointed out in an Annotation to McConnell (1996), 48 C.R. (4th) 200, Lavallee side-stepped the issue of how an accused person can rely on ss.34(1) or (2) to defend against a non-imminent assault, given that each of those provisions requires the accused to have been unlawfully assaulted. How can the accused be Aunlawfully assaulted@ if the assault is only anticipated at some future time? McConnell attempts to reconcile the imminence jurisprudence with the requirement of an assault by borrowing the broad assault language from s.265(1)(b). Indeed, it is probably more accurate too say that the assault concept from s.265(1)(b) is not only borrowed in McConnell. It is stretched out of shape. The deceased was walking past the two accused who jumped him because he had previously threatened to get them. If anyone was to ask, AAt that time, was the deceased assaulting McConnell and his associate?@ the answer would have been Ano.@ Boyle therefore suggests that the term Aassault@ may have a different meaning depending upon whether it is being used as a charge against an accused, or as an element of self-defence. One thing is clear. The authority, without expressly saying so, is treating the term as though it has a different meaning under s.34 than it does in s.265.
This is not just an academic quibble. It can cause difficulties for a trial judge who has to direct a jury about the meaning of assault in a battered woman=s syndrome case. In R v Mallot (1996), 110 C.C.C. (3d) 499 (Ont. C.A.), Arbour J.A. (dissenting) would have overturned the conviction of the accused because the trial judge did not explain how the facts described by Margaret Mallot could have amounted to an assault in law. How could the judge have done so when the meaning of assault has been obscured by the self-defence authority?
The abolition of an imminent assault as a firm prerequisite to self-defence has not made the timing of the threat irrelevant. In R v Petel (1994), 26 C.R. (4th) 145 at 168 (S.C.C.), Chief Justice Lamer observed that while the degree of imminence of the threat is not a requirement for self-defence, it is, as a matter of common sense, a factor that triers of fact should consider in deciding whether the belief in the need to resort to self-defence is reasonable.
The abolition of the imminence requirement, although applicable to s.34(1), will rarely have significance in s.34(1) cases. As a practical matter, the force needed to prevent a non-imminent threat of assault will normally have to be disabling. To protect against a future assault by resorting to violence, the accused will therefore normally be intending to kill or grievously injure the subject of the assault, taking the case out of s.34(1).
Element (b): Provocation
An incomplete definition of Aprovocation@ is included in s.36.
Whether there has been provocation is not to be determined according to the perspectives of the Avictim.@ In R v Kandola (1993), 80 C.C.C (3d) 481 (B.C.C.A.) the victim, the father of a young woman, attacked Kandola, his daughter=s boyfriend, believing that Kandola had provoked him into doing so. The father felt culturally compelled to assault Kandola, who had Aviolated@ his daughter by having pre-marital sex with her. The father=s cultural belief that Kandola was the provocateur was immaterial in deciding whether Kandola had provoked the assault that he ended up defending himself against.
What about the perspective of the accused? In R v Nelson (1992), 13 C.R.(4th)359 at 366-72 (Ont. C.A.), the Court defined the term:
It is unlikely that the Nelson definition of Aprovocation@ is exhaustive. In R v Merson (1983), 4 C.C.C. (3d) 251 (B.C.C.A.), for example, the accused confronted his lover=s husband with a gun, confining him and degrading him for 20 minutes. It is unlikely that Merson intended to provoke an assault on himself by doing so, but when he tried to plead self-defence after being attacked by his Avictim@ he was held to have provoked that attack. This, of course, seems right. Perhaps provocation requires that the accused intend to provoke an assault only where the provocative act is a legal one. Merson=s act was not legal, therefore it amounted to provocation regardless of his intentions. By contrast, Nelsons=s act of provocation, turning up his stereo, was legal and would amount to provocation only if he intended it to induce an assault that he could then defend against. Similarly, it is arguable that Pintar was acting justifiably under s.41, since the victims had entered his property in order to assault him. Given the legality of his act of displaying the gun, it would constitute Aprovocation@ only if Pintar intended to incite an attack.
Element (c): Limited Intention
There is obiter dictum in R v Petel (1994), 26 C.R. (3d) 145 at 167 (S.C.C.) where Chief Justice Lamer suggests that s.34(2) is the appropriate defence where the victim has died. Did His Lordship intend to suggest that s.34(1) is not available in such cases? Arguably not. His Lordship may have merely been describing situations in which s.34(2) would apply, rather than cases where s.34(1) would not. This is the view suggested by The Hon. Willis O=Leary, Alberta Court of Appeal, in an article entitled ADefence of the Person@ (Criminal Law Intensive Program 1995, National Judicial Institute, at 7).
As indicated above, s.34(1) is not available as a defence to murder. Murder occurs where the accused intends to cause death or bodily harm that the accused knows is likely to cause death. If the accused intends to cause bodily harm that he knows is likely to cause death, he will necessarily be intending to cause grievous bodily harm and will be disqualified from using s.34(1). On the other hand, it is possible to lose access to s.34(1) without having the complete mens rea necessary for murder. This is because it is possible to intend to cause grievous bodily harm, such as gouging out someone=s eye, without intending to cause bodily harm that the accused knows is likely to cause death.
Element (d): The Degree of Force
As indicated, this is a Afact specific@ inquiry. In assessing the nature of the threat, it is common for courts to pay regard to the relative strength and size of the combatants: R v Nelson (1953), 16 C.R. 407 (B.C.C.A.). The nature of the attack is also of importance, and can override in importance the relative size of the parties. In R v Marky  6 W.W.R. 390 (Alta S.C.(A.D.)) the accused struck a woman in the face with a beer mug (causing her to receive 176 stitches) when she tried to kick him in the genitals. His actions were considered [by the male judge] in the circumstances, to constitute reasonable force. As the Marky case illustrates, it is erroneous to place undue emphasis on the results of the force. While the degree of injury caused can be circumstantial evidence of the degree of force used, serious injuries can be caused by reasonable force: R v Spence (1995), 134 Sask. R. 157 at 159 (Sask. C.A.). Where force is used after the Aassailant@ has been disabled or is retreating, it may well support a finding that excessive force has been used in self-defence: R v Detering  O.J. No. 4435 (Ont. C.A.) (Q.L.). In Detering, the Aassailant,@ who was smaller, drunk and easily overpowered by the accused, was on his knees covering his face when he was kicked to the head by the accused.
There is no discrete requirement under s.34(1) that the accused attempt to retreat before resorting to self-defence: R v Bogue (1976), 30 C.C.C. (2d) 403 at 411 (Ont. C.A.), dealing with s.34 generally. Despite this, the failure to seek alternatives to self-defence can affect eligibility for the defence, and this can bring questions of Aretreat@ in through the back door. Under s.34(1) it can affect the determination of whether the accused used Amore force than is necessary to enable him to defend himself@. If force could have been avoided by retreat, the force may not have been necessary. In R v Northwest  5 W.W.R. 48 (Alta C.A.), the Court cites from English cases, and says:
C. SECTION 34(2)
Subsection 34(2) provides:
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
Subsection 34(2) applies where the accused is defending against an unlawful assault [if the defence is against a lawful assault s.34(2) does not apply], and where she intends to cause death or grievous bodily harm and succeeds in doing so.
The section applies even if the accused provoked the assault so long as the assault that is provoked is an unlawful one. In R v McIntosh (1995), 36 C.R. (4th) 171 at 190 (S.C.C.) a bare majority of the Court held that the absence of any reference in s.34(2) to provocation similar to the reference in s.34(1) means that s.34(2) is available even where the accused has provoked the assault. As will be seen, this makes section 35, which is designed to deal with provoked assaults, largely redundant because it is stricter than section 34(2). Who would seek to meet the stricter requirements of s.35, when the more generous tests under s.34(2) are available? It also produces the silly result that those who provoke the assault cannot justify using force where they do not intend to cause death or grievous bodily harm under s.34(1), but they can use s.34(2) to justify force when they do intend to cause death or grievous bodily harm.
Strictly speaking, although it is always prudent to do so, it is not necessary to direct a jury that a s.34(2) defence is not lost simply because the accused has provoked the assault that he has ended up defending against. An error will occur only where the instructions as a whole suggest that an accused who has provoked the assault is to be deprived of this defence: R v Jenkins (1996), 48 C.R. (4th) 213 at 225 (Ont. C.A.).
2. The Elements of The Defence
In R v Petel (1994), 26 C.R. (4th) 145 at 167 (S.C.C.), Lamer C.J.C. described three constituent elements for the defence. In light of the authority dealing with the section, it is helpful to break those elements down further, into six:
(b) the accused caused death or grievous bodily harm to the Avictim@;
(c) the accused believed at the time she used force that she was at risk of death or grievous bodily harm (determined subjectively);
(d) the accused's belief that she was at risk of death or grievous bodily harm was reasonable (determined objectively);
(e) the accused believed at the time of the assault that it was not possible to preserve herself from harm except by the infliction of death or grievous bodily harm (determined subjectively).
(f) the accused's belief that the infliction of death or grievous bodily harm was necessary, was reasonable (determined objectively).
Element (a): The Unlawful Assault
Element (b): The Consequence
With the decision in R v McIntosh (1995), 95 C.C.C. (3d) 481 (S.C.C.), however, things changed. Once s.34(2) was interpreted as being available to those who provoked assaults, interpreting the phrase Acauses death or grievous bodily harm@ as requiring an intention to kill would have resulted in a more disturbing anomaly. Interpreting it this way would exclude those who provoke an assault but then unintentionally kill or cause grievous bodily harm in defending against it. Interpreting it literally gives these persons access to s.34(2) and is therefore an interpretation that is more favourable to accused persons. As Justice Moldaver put it in R v Pintar (1996), 110 C.C.C. (3d) 402 at 433 (Ont. C.A.):
Prior to the decision in McIntosh, the problem identified by Moldaver J had not existed. When both sections 34(1) and (2) were confined to those who did not provoke the assault, persons who did not intend to cause death or grievous bodily harm but who did so could use the more generous s.34(1), while those who did intend such harsh consequences would need to meet s.34(2). The problem that Pinter solved was caused by McIntosh.
The question that this raises is whether s.34(1) is now confined to cases where the victim has not died or suffered grievous bodily harm, the very mischief that Martin J.A. intended to avoid in Baxter. Arguably not. Together Pintar and Baxter suggest that where an accused unintentionally causes death or grievous bodily harm in defending an unprovoked assault, s.34(1) should be used. When the accused causes death or grievous bodily harm, s.34(2) is to be used, whether the accused provoked the assault or not, and whether the accused intended to cause death or grievous bodily harm or not. Anomalously, if an accused person intends to cause death or grievous bodily harm to defend against an assault he has provoked, but fails to do so, he cannot use either s.34(1) or s.34(2). He loses s.34(1) because he provoked the assault, and he loses s.34(2) because he failed to cause death or grievous bodily harm.
Element (c): The Subjective Belief about Risk
Element (d): The Reasonableness of the Belief about Risk
Element (e): The Belief in the Need to Inflict Death or Grievous Bodily Harm
Element (f): The Reasonableness of the Belief about the Degree of Force Needed
As in the case of s.34(1), there is no absolute requirement of retreat under s.34(2). Again, the failure to retreat can nonetheless be relevant since it can affect the determination of whether it was reasonable for the accused to believe that she had to resort to force, intending to cause death or grievous bodily harm, in order to prevent the apprehended assault. For example, in R v Eyapaise (1993), 20 C.R. (4th) 246 at 251 (Man Q.B.), the trial judge considered, among other things, that the accused could have left in a taxi, ending the efforts by the Avictim@ to continue with his sexual advances, which had amounted in law to sexual assaults. It is important to remember the admonition of Holmes J in Brown v United States of America, 256 U.S. 335 at 343 (1920), (U.S.S.C.), however:
D. SECTION 35
Section 35 provides:
(a) he uses the force
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
Section 35 is titled "self-defence in case of aggression." It can be used to test claims of self-defence by those who are defending against an assault that they themselves have unjustifiably provoked. In these case, while the accused has herself initiated the physical confrontation by assaulting the victim, the victim has escalated matters to the point where the accused comes to fear for her life or that she would be caused grievous bodily harm. Given the role played by the accused in instigating the assault, it is not surprising that the prerequisites to this defence are generally stricter than those that apply under s.34(1) and s.34(2).
It is important to note that s.35 does not always provide an absolute defence. Where the accused has Awithout justification assaulted another@ s.35 justifies only the force Asubsequent to the assault@. In other words, if the accused committed an initial, unjustifiable simple assault, and then had to cause grievous bodily harm to defend himself against his victim=s escalation, he will not be guilty of assault causing bodily harm or wounding, but will be guilty of the simple assault. In some cases it will be an absolute defence, such as where an accused has not committed an initial assault, but has undertaken other action that has provoked the Avictim@ into assaulting him. 2. The Elements of the Defence
Even though "section 35 has not produced distinctive jurisprudence" [Don Stuart, Canadian Criminal Law 2nd ed, (Toronto: Carswell, 1987) at 413], it is nonetheless possible to set out its elements with some confidence. Sub-sections 35(a),(b) and (c) are to be read conjunctively, unlike s.34(a) and s.34(b) which create separate defences. In other words, before the defence is available, all of the preconditions spelled out in s.35(a), (b) and (c) must co-exist, in the sense that the Crown has been unable to remove a reasonable doubt about the existence of any one of them.
In R v Hobbs and Holt (1994), 155 A.R. 58 (Alta C.A.), applications for leave to appeal dismissed (3 November 1994 (Hobbs)), (12 January 1995 (Holt)), the Alberta Court of Appeal described five tests that must be met before s.35 can be relied upon. I have added the requirement, implicit in the Court of Appeal=s list, that the accused has provoked the assault
b. [The accused] had a reasonable apprehension of death or grievous bodily harm from the violence of the deceased; and
c. [The accused] believed, on reasonable grounds, that ... force was necessary to preserve [himself] from death or grievous bodily harm; and
d. [The accused] did not, at any time before the necessity of preserving [himself] from death or grievous bodily harm arose, try to cause death or grievous bodily harm to the deceased; and
e. [The accused] declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving [himself] from death or grievous bodily harm arose."
Those who Aprovoke@ the assault on themselves without first assaulting the victim, will also loose access to s.35. AProvocation@ must have the same meaning here as it does under s.34(2), since s.36, which defines provocation, applies to both sections 34 and 35.
Element (a): The Disqualifying Intention
Element (b): The Reasonable Apprehension Requirements
Element (c): The Reasonable Belief in Self-Preservation
Element (d): The Disqualifying Attempt
Element (e): The Retreat
The duty to retreat arises only after the victim has commenced the use of force. It would be wrong to use this precondition to disqualify an accused from using s.35 because he could have avoided the whole mess by staying away from the victim.: R v Merson (1983), 4 C.C.C. (3d) 251 at 266 (B.C.C.A.).
The phrase appears to allow the accused to either Adecline further conflict@ or Aretreat@. If so, it differs from the common law retreat obligation. This may explain the result in Dorion (1972), 18 C.R.N.S. 127 (N.B.C.A.). The accused instigated the incident by striking the victim through a car window. He then broke a bottle and walked away. The victim broke his own bottle and advanced on the accused. Dorion did not retreat. He pulled out a gun and threatened the victim with it. The victim was not deterred by this and kept advancing. Dorion shot him, non-fatally. He was held to have acted in self-defence, under s.35. Although there is no careful discussion of these elements it seems clear that Dorion did not Aretreat.@ Instead he sought to deter the counter-attack by Adeclining further conflict@ through his efforts to intimidate the victim into leaving him alone.
Again, the Adecline@ or Aretreat@ requirement under s.35 would no doubt be applied differently if the accused was in his own home at the time he provoked the assault that he ended up defending against.
3. The Scope of s.35 and Commentary
The decision in R v McIntosh (1995), 95 C.C.C. (3d) 481 (S.C.C.) to make s.34(2) available even where the accused has provoked the assault he ends up defending against has all but rendered s.35 obsolete, and has obscured the common law distinction between provoked and unprovoked assaults. As is evident, s.35 is intended to limit access to the defence of self-defence by instigators. As the Law Reform Commission of Canada explained in Criminal Law: the general part - liability and defences Working Paper 29, (Ottawa, 1982) at 104::
Paradoxically, section 35 may still have a role to play where the accused has provoked the assault and then repelled it without grievously injuring or killing the victim. Such accused persons are not entitled to use s.34(1) because they have provoked the assault, and they cannot use s.34(2) because they have not caused grievous injury or death to their victims. These accused persons must rely upon s.35, with its stricter requirements, or on s.37. This anomaly arises not just because of the archaic drafting of the Criminal Code. It emerges because of the decision in R v McIntosh (1995), 95 C.C.C. (3d) 481 (S.C.C.).
E. SECTION 37
Section 37 provides:
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the assault that the force was intended to prevent.
Section 37 is most significant in cases involving the defence of another who is under the protection of the accused. A broad interpretation is given to whether a person is Aunder the protection@ of the accused. In R v Webers (1994), 95 C.C.C. (3d) 334 (Ont. Gen. Div.), O=Connor defined the phrase as including anyone who requires protection that the accused may be able to provide. The defence was therefore available when a friend of a women being subjected to an unlawful assault by medical personnel who were attempting to administer medication, intervened to protect her, only to end up in an altercation with a police officer. In R v Jenkins (1996), 48 C.R. (4th) 213 at 229 (Ont. C.A.), the court proceeded on the assumption that Jenkins brother would have been under his protection if he was about to be stabbed by the assailant.
Section 37 is technically available, although apparently hardly ever relied on, as an alternative to s.34 or s.35 in cases where necessary and proportionate force has been used and where neither s.34 or s.35 are available. In the words of Lamer J., "Although Parliament's intention in enacting s.37 is unclear, at the very least the provision must serve a gap filling role, providing the basis for self-defence where ss.34 and 35 are not applicable.": (1995), 36 C.R.(4th) 171 at 188 (S.C.C.). It is therefore unnecessary to consider it unless there is a possible factual scenario that would satisfy its components, yet not satisfy either ss.34 or 35: (1995), 36 C.R.(4th) 171 at 188 (S.C.C.).
2. The Elements of the Defence
In R v Cameron (1995), 96 C.C.C. (3d) 346 at 368 (Ont. C.A.), the court described s.37 as raising three real issues:
(c). Did the accused, in using the defensive force, use no more force than was necessary to prevent the assault or its repetition?@
Elements (a) and (b): Where the accused uses force for the purpose of defending herself from an assault
(b). Did the accused use force to defend himself from the actual assault?
Element (c): Necessity and Proportionality
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force was intended to prevent.
It seems clear from the wording of s.37 that its inquiries are purely objective. Hence, the force must actually be necessary in self-defence. It is not enough that the accused reasonably perceives it to be. Moreover, it must actually be proportional.
The fact that s.37 has a proportionality requirement whereas s.34(2) does not, means that in any case where the judge does direct a jury on s.37, she must make it clear that the comments about proportionality made with respect to s.37 do not apply to s.34(2): R. v Mulder (1978), 40 C.C.C.(2d) 1 at 4 (Ont.C.A.).
Element (d): The Accused did not cause death or grievous bodily harm
McLachlin J., for herself and three other members of the Court, expressed the opinion in R. v McIntosh that:
The notion that s.37 should not be applied where death or grievous bodily harm have been caused is problematic. If it is correct, s.37 does not fill all of the gaps left by ss.34 and 35. Consider again the accused who has provoked an assault from which she does not fear death or grievous bodily harm but who then causes grievous bodily harm while applying a proportionate amount of force in self-defence. She cannot use s.34(1) since she provoked the assault, and she cannot use either ss.34(2) or 35 because she did not apprehend death or grievous bodily harm. Apparently she cannot use s.37 either because she has caused grievous bodily harm.
It should not be forgotten that s.37 applies to the defence of another under one's charge. Neither ss.34 or 35 are available for the defence of another. If s.37 cannot be used where death or grievous bodily harm have been caused in the defence of another, even one's own child, the accused would be left to rely upon s.27, a provision of general application designed to allow the prevention of offences.
I therefore include this criterion with serious reservations about whether it is in fact correct.
Element (e): Section 34 and 35 Must not be Available
This limitation appears to have little significance, since where ss.34 or 35 would apply, the accused has no need for s.37 and loses nothing by not having it considered. Unless the accused posits a scenario having an air of reality on the evidence that does not fit within ss.34 or 35, but which could fit under s.37, a failure to direct the jury on s.37, or to consider its application, is not in error.
There are at least three cases where s.37 might be needed to perform this gap filling role, and there are probably more. First, if the accused does not apprehend death or grievous bodily harm from the accused but has provoked the initial assault, she will be unable to satisfy either ss.34 or 35. This is because s.34(1) is not available to those who have provoked the assaults they are defending, and ss.34(2) and 35 apply only to persons who apprehend death or grievous bodily harm. Second, if an accused has provoked the assault she is defending against, does not cause grievous bodily harm or death, and fails to retreat or decline further conflict, s.37 might be needed. Section 34(1) is not available because of the provocation, s.34(2) is not relevant because there has been no death or grievous bodily harm, and s.35 is not available because there has been no Aretreat.@ Third, s.37 might be needed where an unprovoked accused person intends to cause death or grievous bodily harm in self-defence, but fails to do so. Section 34(1) cannot apply because the accused intended to cause death. Section 34(2) cannot apply because the accused did not cause death. And s.35 cannot apply because the accused did not provoke the assault she was defending.
In R v Pintar (1996), 110 C.C.C. (3d) 402 at 423 (Ont. C.A.), the Court concluded that the trial judge was correct to leave s.37 to the jury where the accused had produced a rifle to scare two men off of his property, who had come to challenge him. The men were shot dead. The most relevant section was s.34(2). The Court felt that s.35 was not realistically available because there had been no attempt by the accused to retreat (although no careful consideration was given to the fact that Pintar was in the doorway of his own house). The Court felt that s. 37 might become crucial Aif the jury concluded that [the deceased men] were merely responding to the appellant=s unlawful assault upon them occasioned by his show of force with the rifle, thereby foreclosing the application of s.34(2).@ Section 34(2) would be foreclosed, it would seem, because if this were so, the accused would not be unlawfully assaulted as required by s.34(2). But if the accused is not being unlawfully assaulted, why should s.37 be put? Does this mean that s.37 is available to defend against lawful assaults? One would hope not. Although unlike s.34, it uses the word Aassault@ rather than the term Aunlawfully assaulted@ it must be implicit that the assault defended against be unlawful, otherwise the law is choosing to step aside. Those who are using lawful force can be dispatched, in self-defence.
Part II - Subjective/Objective Issues
A. Determining Subjective Elements of the Defence
The law of self-defence justifies the use of harmful force. It therefore insists that those who are to be exonerated actually believe themselves to be threatened, and actually believe that the force they use is necessary in self-defence. We cannot resolve any self-defence claims, therefore, without inquiring into the actual or subjective state of mind of the accused. This necessarily means that everything that can impact upon the state of mind of the accused is to be considered when making the relevant subjective determinations. If the accused is young, tired, or intellectually slow, that is to be considered. If the accused is paranoid, that too, is to be looked at. The knowledge of the accused is also relevant. For example, familiarity by the accused with the reputation of the Avictim@ for violence is to be factored in. So, too, are the beliefs and perceptions of the accused. In R v Petel  1 S.C.R. 3, for example, the belief by Collette Petel that her daughter=s boyfriend was serious when he threatened to kill the entire family later that day was significant in determining whether she actually believed that she had no choice but to resort to fatal force. The entire, relevant history of the accused, including the accused=s relationship with the Avictim,@ is to be examined on the subjective issues. The reason, of course, is that a subjective inquiry is into the actual state of mind of the accused, and if the law were to attempt to evaluate this without considering those features that may have had an impact on the accused=s perceptions and beliefs, then it may be unable to arrive at a correct result.
The one exception to this general rule is the intoxication of the accused. Even though intoxication can affect subjective perceptions, the Supreme Court of Canada has described it as irrelevant where the law requires that the subjective state of mind in issue must be reasonable to excuse. In R v Reilly (1984), 42 C.R. (3d) 154 (S.C.C.) Ritchie J explained that a reasonable person is not one whose faculties are clouded by drink. [Presumably, he was confining his comments to Aself-induced intoxication.@] Even if a trier was to conclude, for example, that because of his intoxication the accused perceived himself to be under threat of assault, he could not rely upon self-defence since that perception would be unreasonable. There is therefore no point in considering intoxication on the subjective issue.
Apart from the subtleties of the law=s treatment of intoxication, subjective inquiries are straightforward technically. It is nonetheless worth reaffirming at this juncture that where there is an air of reality to the claim of self-defence, the burden is on the Crown to disprove it beyond a reasonable doubt. This means that an accused will be entitled to the defence, even if the trier of fact cannot decide with confidence what the subjective state of mind of the accused was, so long as they have a reasonable doubt about it.
B. The Objective Inquiries
1. The Function of the Objective Inquiries
In addition to subjective issues relating to the actual state of mind of the accused, every self-defence provision also requires objective assessments to be made. The law relating to the proper conduct of objective inquiries is a mess. This is the result of loose language being used, and the failure to consider the function that objective inquiries are meant to perform. We use objective standards so that society, rather than the accused, will be defining the tolerable standards for the use of violence. It cannot be a justification for the accused to deem that she needs to kill in order to defend herself where there that belief is not a reasonable one. We therefore evaluate the reasonableness of those subjective beliefs and of the actions taken.
Unfortunately, the objective inquiry becomes complicated because of the way we determine reasonableness in law. We do not simply ask, AWas that action reasonable?@ We normally pose the more complex question, AWhat would a reasonable person in the position of the accused have done?@This technique begs a couple of basic questions. What is a reasonable person like, and what do we mean by Athe position of the accused?@ What characteristics do we imbue the reasonable person with, and how far do we go in placing that hypothetical reasonable person in the position of the accused? If by putting the hypothetical reasonable person in the position of the accused requires us to assume that this reasonable person has all of the same personal characteristics as the accused, then the inquiry would not be objective anymore. Asking, AWhat would a person identical to the accused have thought, known or believed?@ is the same as asking AWhat did the accused think, know or believe?@, which, of course, is a subjective inquiry. To proceed in this way would destroy the whole point in having an objective inquiry. Still, it is necessary in putting the reasonable person into the position of the accused to take into account, at least to some degree, who the accused is. A 98 pound weakling may need to employ grievous bodily harm to defend himself in cases where others might not. Being 98 pounds does not make someone unreasonable, so it is appropriate to ask, for example, AWould a reasonable 98 pound weakling feel it necessary to employ grievous bodily harm to defend himself in this situation?@ But where do we draw the line? What other personal characteristics do we consider? That is not an easy question to answer. As always where this is the case, lawyers retreat into abstract principles. This principle emerges with only a modest amount of coaxing from the Supreme Court of Canada decision in R v Thibert (1996) 45 C.R. (4th) 1 at 8-9:
2. Context (Incident and Pre-Incident Experiences)
It is important first to distinguish between the context and the personal characteristics of the accused. Whatever else it means, putting the reasonable person in the position of the accused requires that the reasonable person be in the same situation the accused was in at the time the Aoffence@ was committed. If shortly before she attacked, the accused was told she would be killed later, then we have to imagine that the reasonable person was also told shortly before she attacked that she would be killed later. If the assailant is six-foot three and high on drugs, then we have to imagine that the reasonable person is met by an identical assailant. This much is obvious.
The same can hold true of pre-incident experiences the accused has had. Although this has proved to be a potential pitfall for judges, the law is clear. The hypothetical reasonable person is to be assumed to have had all of the relevant pre-incident experiences of the accused. To take a now familiar example, if an accused woman was continually battered by the Avictim@ during an ongoing relationship, the hypothetical reasonable person will be a woman who has had the same experiences. Obviously, it is more reasonable to believe that an assault is pending, or to believe that extreme force is needed in self-defence, if the Avictim@ has used extreme force against you on regular occasions in the past.
In the self-defence case of R v Petel  1 S.C.R. 3, the accused, Collette Petel, fatally shot an associate of her daughter=s boyfriend to death. On the day of the shooting, the boyfriend brought a revolver into her home and asked Petel to hide it. He then forced Petel to weigh some cocaine and threatened to kill her, as well as her daughter and grand-daughter. Petel retrieved the gun and shot him. When his friend attempted to intercede, she killed the friend. In isolation, the events of that day would hardly support a finding that Petel reasonably believed that she had to resort to fatal force against an unarmed man to defend herself against a non-imminent threat. Viewed in the context of her prior contact with her daughter=s boyfriend, her belief may not have been unreasonable. As it happened, the boyfriend had been living in Petel=s home with her daughter. During this period he had threatened the daughter frequently and had beaten her, effectively terrorizing the occupants of the house. He had shown himself to be capable of carrying out what otherwise may have appeared to be an idle threat. As the case illustrates, putting the hypothetical reasonable person into the position that the accused was in is not confined to the events of that day. It can also require the relevant, pre-incident experiences of the accused to be considered.
3. The Personal Characteristics of the Accused
As indicated, the risk is run that the objective inquiry will become pointless if we ascribe to the reasonable person too many of the personal characteristics possessed by the accused. Yet the inquiry into the reasonableness of actions can become decontextualized and artificial if we disregard entirely who the accused is.
Physical Characteristics and Condition
It is important to ascribe the physical characteristics of the accused to the reasonable person. In deciding whether a battered women has acted reasonably we must, in all events, consider that she is a woman with inferior physical strength to her assailant, if that be the case: R v Lavallee  1 S.C.R. 852 at 883. Speaking generally, we have to take into account relative size, strength, age, health, and combative experience. It will be less reasonable for a healthy, strapping young man to justify the use of a weapon to repel the unarmed assault by an elderly, feeble attacker, than it would be for an elderly feeble man to justify the use of a weapon to repel the unarmed assault by a healthy, strapping young man (see, for example, R v Nelson (1953) 105 C.C.C. 333 (B.C.C.A.)).
Again, the case of intoxication complicates this to some degree. While it is contrary to public policy to allow self-induced intoxication to be used as an excuse for failing to perceive events accurately, it is not contrary to public policy to appreciate that intoxicated people may be more vulnerable to attack, and perhaps less able to defend themselves. As a result, in R v Dorion (1972), 18 C.R.N.S. 127, the New Brunswick Court of Appeal allowed the intoxication of the accused to be considered in deciding whether it was reasonable for him to fear that he was in danger of grievous bodily harm. Intoxication was considered to be a relevant physical condition relating to the accused=s vulnerability, which would have been taken into account by a reasonable person.
4. Factors Diminishing the Standards of Conduct
In some cases, it is obvious that the purpose of the objective inquiry of ensuring minimum standards of behaviour would be destroyed by considering the personal characteristics or condition of the accused. Speaking generally, where this is the case, those characteristics should not be considered. For example, the accused may be unusually neurotic, or pugnacious, or aggressive, or territorial. Personality traits such as these can cause over-reaction, or Ashort-fuse@ responses. While the accused may believe his physical space has been threatened, that may not be a reasonable assessment. Analogy can be made to the defence of provocation. It has always been the law that idiosyncratic personal characteristics relevant to the power of self-control cannot be considered in deciding whether an ordinary person would have lost the powers of self-control. For this reason, the reasonable person is not to be considered to be exceptionally excitable, pugnacious or drunk, even if the accused is. Similarly, the ethnicity of an accused which may reduce his compliance ability is not to be considered. In the provocation case of R v Ly (1987), 33 C.C.C. (3d) 31 (B.C.C.A.), the reasonableness of the response of the accused to his wife=s adultery was not to be measured by the standards of a Vietnamese male, who might have a heightened sense of insult because of the loss of face or honour.
6. Personal Characteristics Demonstrating an Incapacity to Conform
Where a criminal offence can be committed by negligence, a majority of the Supreme Court of Canada said in R v Creighton  3 S.C.R. 3, that the reasonable person is not to be given the personal characteristics of the accused in deciding what standards that reasonable person would have lived up to. If, however, the accused is incapable of meeting the standards of the reasonable person, this will prevent a finding of penal negligence. In other words, the reasonable person is not to be imbued with the personal characteristics of the accused falling short of incapacity, but is to be given those personal characteristics that positively prevent the accused from acting reasonably. The most that we can expect of a person is that they live up to those standards they are capable of attaining. This much is required by the concepts of fault that are found in the Charter.
It appears that personal characteristics incapacitating an accused person from meeting the standards of reasonableness should also be considered with respect to defences. Parallel reasoning would suggest so. In obiter dictum in R v Hibbert  2 S.C.R. 973 at 1019, dealing with the defence of duress and the objective requirements of that defence, Lamer C.J.C. said:
7. Exceptional Cases
It has been the practice of courts to consider the age of the accused in self-defence cases when considering the reasonableness of the conduct. It is not just that the young are likely to be physically vulnerable. It is that they cannot be expected to judge their conduct as well as adults might. As a matter of policy and experience, less is expected of the young: see, for example, R v Cadwallader  1 C.C.C. 380 (Sask Q.B.). This longstanding practice is inconsistent with the general principle that personal characteristics short of incapacity should not be considered when making objective assessments for defences, but it is well enough established that it certainly represents the law.
(b) Diminished Intelligence
The law in Ontario is clear. It is an error in a self-defence case to fail to advise the jury, or to consider, the diminished intelligence of an accused person when making objective assessments: R v Nelson (1992), 71 C.C.C. (3d) 449 (Ont. C.A.). The Nelson court held that the trial judge erred by failing to direct the jury that, when assessing what a reasonable person would have believed or done, they should consider a reasonable person Awith the accused=s diminished intelligence.@ The Court concluded that Lavallee had coloured prior jurisprudence by focussing on what Athe accused reasonably perceived, given her situation and her experience.@ The Court remarked that a person of diminished intelligence Amay be in a position similar to that of the accused in Lavallee in that his or her appreciation and belief could not fairly be measured against the perceptions of the >ordinary man=@: at 467. The difference, of course, is that diminished intelligence is a personal characteristic that reduces the accused=s standards of compliance, even when short of incapacity, whereas the perceptions relevant in the Lavallee case were created situationally. An ordinary person in Lyn Lavallee=s position might reasonably derive those same perceptions; they arise from context, not because of personal characteristics.
The Nelson decision was rendered prior to Creighton and relied upon decisions and opinions that are inconsistent with the Creighton principle. This could diminish the authority of the case outside of Ontario, or cause it to be revisited if the matter comes again before the Ontario Court of Appeal or the Supreme Court of Canada. In the meantime, Nelson is the law in this province.
8. The Actual Subjective Perceptions of the Accused
There are reasonable perceptions and there are unreasonable ones. Indeed, we have long recognized that unreasonable beliefs, if acted upon, can constitute negligence. It is no defence in a dangerous driving charge for the accused to show that he did not see the oncoming vehicle and that, according to his perception, he had an open road. With respect to the defence of self-defence, we do not exculpate those who believe unreasonably that they are being assaulted. The doctrine requires that this belief be reasonable. It follows necessarily that we do not allow the subjective beliefs or perceptions about fact of the accused to be used as the basis for evaluating the reasonableness of their actions. What we do is ask whether the subjective beliefs and perceptions of the accused are reasonable ones. If they are, we then ask whether, given those reasonable beliefs, the accused acted reasonably. This should be simple enough. Unfortunately, there is language in some of the cases, including Lavallee, suggesting that in judging the reasonableness of the actions of the accused we are to take into account her perceptions. In Lavallee  1 S.C.R. 852 at 889, Wilson J. said [emphasis added]:
9. The Subjective and Objective Inquiries Summarized
2. In resolving the objective inquiries in self-defence cases, the trier of fact should apply the Thibert principle, thereby considering:
(d,) the age of the accused,
(e,) any intellectual deficiencies he or she may have; and
(f,) the incapacity of the accused, if any, to meet the reasonable and responsible standards of behaviour that the defence is meant to encourage.
4. The reasonableness of the relevant actions
of the accused are to be judged according to those facts the accused should
reasonably have been aware of, and not according to the subjective perceptions
of the accused.
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