Bill C-26 (S.C. 2012 c. 9)
Reforms to Self-Defence and
Defence of Property:
Technical Guide for Practitioners
A. New Self-Defence Overview
The old law of self-defenceFootnote 3 in the Criminal Code provided a variety of distinct self-defence provisions, each applicable to a slightly different set of circumstances. For those who work in Canadian criminal law, the old self-defence laws were universally seen to be in drastic need of simplification. The multiplicity of self-defence provisions (old sections 34 to 37 of the Criminal Code) were virtually unchanged since their enactment well over a century ago. They were drafted with the laudable aim of customizing the application of self-defence to distinct circumstances that may demonstrate somewhat different moral qualities. For instance, old section 34 provided a defence for an innocent victim who was suddenly and unlawfully attacked, whereas old section 35 provided a defence with slightly different requirements for a person who attacked another first and then subsequently used force to defend against their victim's response. Over a century of jurisprudence and practical experience with the old provisions clearly revealed that the existence of multiple provisions and their specificity produced complexity and uncertainty that did not serve the ends of justice. Rather, juries were left confused and efforts to make the legislative text of the law understandable were confounded. Unnecessary complication meant that cases in which charges were warranted ended up being protracted and frequently appealed on grounds relating to errors in jury instructions, and possibly also that charges were laid in some cases where they should not have been, further clogging strained court systems.
In contrast, during that time there had not been widespread criticism of the basic principles that underpin self-defence as understood in Canadian criminal law. Indeed, despite the complexity of the old legislative text of self-defence, juries were generally thought to make appropriate findings of fact in self-defence cases. It was in the process of getting to that determination where the problems lay.
The intent of the new law is to simplify the legislative text itself, in order to facilitate the application of the fundamental principles of self-defence without substantively altering those principles.
New Approach: Single Rule for Self-Defence
The new law accomplishes this objective by extracting the common core elements from the multiple different versions of the old defence, and codifying those elements in a manner that provides a single simple framework for assessing the defence in any and all situations in which it might be raised. The new approach focuses on what each version of the old law of self-defence had in common with the others, rather than the features that differentiated each provision from the others. The common elements are core to self-defence, regardless of the differences that may occur from one situation to the next. These are now reflected as the three core requirements for self-defence (itemized in new subsection 34(1)).
At the same time, the distinguishing components of the old law are eliminated as threshold elements. The function of these elements and the nature of how they are considered in a self-defence claim have changed, but they remain important considerations nonetheless. Under the new law, they may be considered wherever relevant, on a case by case basis, as contextual factors that help the jury to determine whether the new core defence elements have been satisfied.
In regards to the approach toward simplification and clarity of the law of defence of person, two consequences should be borne in mind:
- It is acknowledged that the law as it applies to some subset(s) of circumstances could be subtly altered by the elimination of circumstance-specific self-defence requirements. In developing the new defence, the greatest of care was taken to ensure that any such alterations would be as few in number and as small in scale as possible. Such anticipated changes in the application of the law are discussed in this guide under relevant sections and paragraphs.
It is critical to appreciate that the shift away from circumstance-specific mandatory requirements for self-defence is not intended to dispense with the considerations that were captured by such requirements in the old law. It is clear that the old laws' "requirements" remain highly relevant to understanding the scope and function of self-defence generally, as well as its application in any given case. What the new approach does is convert some of the factual elements that were "required elements" under the old law (i.e. rigid conditions that had to be satisfied for any particular version of self-defence to succeed) into "factors" or "considerations" that feed into the determination of one or more of the core elements of the new defence of person rules.
For example, the proportionality between an incoming threat of deadly force and the defensive use of deadly force in response is no longer a threshold requirement that will be determinative of the success of a defence claim (as it had been under old law subsection 34(2)). Now that there is only one defence of self-defence that applies in cases involving force of any degree of seriousness, that specific rule (i.e. threat of death is required to justify deadly force) is no longer a legal requirement for the defence to succeed, including in the case of an accused charged with murder. However, proportionality between the threat and the response remains a highly relevant consideration in assessing defence of person claims. Under the new law, it is expressly itemized as a factor to consider in the determination of whether the defensive response was
"reasonable in the circumstances"(paragraph 34(1)(c)), as will be set out below. Proportionality between threat and response may be relevant to assessing other defence requirements, such as the subjective "defensive purpose" of the accused (paragraph 34(1)(b)), without being expressly referred to in the new law.
Other examples of old self-defence elements that have been eliminated as rigid requirements are the requirements under subsection 34(1) and (2) that the incoming attack be an "unlawful assault" (but the accused's knowledge that the force was lawful is listed as a relevant consideration to the reasonableness of the accused's response under paragraph 34(2)(h)) and the requirement under old section 37 that a third person whom the accused sought to defend was "under their protection". As well, the special considerations surrounding the lawfulness of claims of self-defence against police action are expressly addressed in new subsection 34(3).
Overall, it is Parliament's intention to give effect to established self-defence principles in a more transparent and consistent way. The new law should facilitate jury instructions and allow decision-makers to come to conclusions more easily and simply. The shift away from numerous circumstance-specific self-defence requirements provided by several distinct defences, and toward a single generally applicable defence, allows for the simplification of the law on the one hand, and also for consideration of all relevant factors within the context of individual cases, on the other.
The new law allows former threshold requirements to carry more or less weight depending on the facts of each case, while simultaneously affirming their importance as a matter of policy and simplifying the task of the trier of fact. Of course, any and all relevant factors, including those which were never codified as defence requirements, can be taken into account in accordance with the general laws of evidence. The list of enumerated factors (in new subsection 34(2)) is neither exhaustive nor exclusive. Other considerations may properly apply in a given situation.
Core Self-Defence Elements: Balancing Objective and Subjective Assessments
The new basic rule for self-defence contains three required elements:
- A reasonable perception of force or a threat of force against the accused or other person (accused's subjective perception that is objectively verified);
- A defensive purpose associated with the accused's actions (accused's subjective state of mind); and
- The accused's actions must be reasonable in the circumstances (objectively assessed).
Overall, the new rule seeks to evenly balance objective and subjective considerations. However, it accomplishes the balance in a slightly different way than did the old law.
Briefly, under the new law, the threat perception is assessed on a combined subjective/objective basis, which is essentially the same as the old law. Mistakes as to the nature or existence of the threat are permitted, but only where such mistakes are reasonable ones.
The new law introduces an explicit "defensive purpose" requirement, which is judged on a purely subjective basis: is there some evidence on which a jury could conclude that the accused had a defensive purpose when he or she did the actions that form the subject-matter of the charge? This purpose is not subject to objective confirmation. It is a rough equivalent to the requirement under the old law that the accused believed that they needed to take the action they did. Under the old law, this belief had to be verified objectively.
Taking into account the accused's reasonable threat perception and their subjective defensive purpose (as well as any other considerations that are relevant in those determinations), the actions the accused took must, as a final step, be assessed as objectively reasonable in the circumstances.
Overall, then, the new defence contains objective and subjective elements in equal measure:
- one element (triggering threat) is a combined subjective/objective element;
- one element is purely subjective (purpose); and
- one element is purely objective (the reasonableness of actions).
Although this represents a new structure for self-defence in Canada, the essential elements are familiar, as is the overall approach of blended subjective and objective assessments. This approach allows for both sensitivity to the unique experiences and perceptions of each accused in highly charged and volatile situations, as well as an appropriate degree of societal oversight and boundary-setting in relation to the commission of crimes in self-defence.
Reasonableness of Actions – Listed Factors
To assist with the interpretation and application of the third core element of the new defence, i.e. the reasonableness of the actions taken in self-defence, a non-exhaustive list of factors is included in the new law. One motivation for the list of factors is that it presents a means of codifying certain relevant considerations that derive from jurisprudence. In particular, two aspects of the landmark SCC decision in LavalleeFootnote 4 are now codified:
- imminence of the attack is not a rigid requirement that must be present for the defence to succeed, but rather is a factor to consider in assessing the reasonableness of the accused's actions; and
- an abusive history between the accused and the victim is a relevant factor in assessing the reasonableness of the accused's actions.
The codification of these (and other factors) signals that the new law is not intended to displace old jurisprudence. Rather, the list helps to indicate that previously recognized self-defence considerations continue to apply wherever relevant. The list of factors was provided to give some guidance to judges and juries, because the new element of actions being "reasonable in the circumstances" does reflect a change in the wording of the law and the enactment of a more flexible standard. All of this is discussed in greater detail throughout the guide.
Defensive Action against Police Conduct
A third and final element of the new self-defence law is found in new subsection 34(3). Briefly, this subsection sets out the rule that must be applied in the special circumstances of a claim of defensive action against police conduct. The reason for this rule and its anticipated application are discussed later in this guide.
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