As with many of our legal defences, defence of the person comes to us through the English common law and was ultimately codified in our first Criminal Code of 1892. Over time the codified defence, together with the codified defence of property, which we will discuss in the next episode, became increasingly obtuse, ultimately stretching over nine sections from section 34, which offered differing forms of self defence depending on whether the accused was the aggressor, to section 42, which provided justifications for those persons peaceably entering a dwelling house or real property to take lawful possession of it.
This mash-up of sections resulted in a nightmare of a defence as certain sections applied only in specific circumstances and certain subsections applied in even other circumstances. For example, in the old section, s. 34(1) applied where the accused was unlawfully assaulted and did not provoke the attack, while s. 34(2) applied where the accused either provoked or did not provoke the unlawful assault. The nightmare continued as Judges struggled to explain these differences to a Jury, eagerly awaiting instruction. It is unsurprising that appellate courts considered many of these self defence cases.
So, in some sense, it was a relief in 2013, when the Federal government streamlined the defence into one applicable section. However, this streamlining, I would argue, may have re-focused the defence from a modified subjective/objective assessment to a more thorough consideration of the objective view of the accused’s conduct.
Before, we launch into the niceties of this new section, please remember that self defence and defence of the person is a category of common law defences known as justifications. Justifications, according to Justice Dickson in Perka v The Queen, “challenges the wrongfulness of an action which technically constitutes a crime.” In other words, the actions of the accused appear “rightful, not wrongful” and, as Justice Dickson further explained, “the concept of punishment often seems incompatible” with the act committed. Indeed, Justice Dickson opined, in the circumstances “the values of society, indeed of the criminal law itself, are better promoted by disobeying a given statute than by observing it.”
In that aura of humanity, let us review section 34, which reads as follows:
(1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(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.
There are three parts or subsections to s. 34. Subsection 1 outlines the essence of the defence as containing both subjective and objective elements relating to the belief the accused was facing a situation that required the justified response. Subsection 2 enumerates a number of factors to be considered in determining whether or not the accused had a reasonable belief she was facing a situation where the use of force was justified. Although this list is lengthy it is not exhaustive and other factors may come into play depending on the case. Additionally, this list is derived from case law and reflects the many circumstances considered over the years of appellate review of the old sections.
Although the accused need only raise a doubt that her actions were so justified and therefore the burden to prove the accused actions were not justified are on the Crown, the defence must raise an air of reality to the defence before it will be considered by the trier of fact. I have written a paper on the application of the threshold test of air of reality to justifications and excuses at (2014) 61 Criminal Law Quarterly 531 or you may review my short blog version of that paper here.
Subsection 3 sets out when the defence is not available: where the force the accused was facing was lawful. However, the accused may rely on the defence if the accused believed on reasonable grounds that the force threatened was unlawful.
Since the change in the defence, there have been a number of trial court decisions applying the section. One of the first issues to be argued was whether or not the section is retrospective. The question was as follows: where the accused is facing a pre amendment charge but is tried post amendment, which statutory defence applies? The cases suggest that the section is not retrospective and the trial judge must apply the defence sections, which were in force at the time of the offence. For a discussion of this issue see R v Evans, 2015 BCCA 46 (CanLII).
In the end, how does the new section compare to the old sections? In my prior blog, Canada’s New Defence of the Person Section: Is It Too Reasonable, I argued that although the old sections, which blended objective/subjective considerations, provided a less than satisfactory defence, the new iteration is decidedly more objective and fails to adequately consider the accused’s subjective perception of the events. Thus, the section is concerned more with the hypothetical reasonable person’s viewpoint and less with the individual who is in reality facing the dire circumstances.
Further, the defence requires that the accused’s actions must be “for the purpose of defending or protecting themselves or others.” This requirement at first blush seems non-controversial, as obviously the conduct must be in response to an unlawful assault. However, on closer examination and upon reviewing some case law, this requirement may unduly restrict the defence.
In the 2015 Ontario Superior Court of Justice case of Allen before Justice Fairburn, Mr. Allen assaulted a police officer and appeared to resist arrest by punching the officer and placing him in a “choke hold.” In the end, the officer was found not to be in the lawful execution of his duty and therefore the arrest was unlawful. Although Justice Fairburn dismissed the defence of self defence under s. 34, as the act of the accused was not reasonable in the circumstances, the court commented on the “purpose” of the assault. According to Justice Fairburn, the accused did not testify and therefore the court inferred that the act was not for the purpose of defending himself but was force used purely for the “sake” of using force against the police officer. This analysis suggests that not only should defence counsel consider very carefully whether or not to call a client where self defence is raised but also provides a strict meaning of the term “for the purpose.” Defence counsel should be aware that this subsection could add a further evidential burden on the accused despite the fact the accused need only raise a doubt on the issue.
Although this section has been in use for two years, the section has not been subject to an appellate court decision. It will be interesting to see what interpretation ultimately is given to this section. For instance, an issue may arise considering the applicability of the common law version of the defence where this statutory defence differs from the common law and whether the courts are willing to modify the statutory defence in accordance with common law principles. In the meantime, counsel should carefully review the defence evidence on the issue of defence of the person in light of this new statutory defence and be mindful of the new requirements.