6. Self Defence

Summary of Self-Defence #

General points: #

The self-defence provisions in section 34 of the Code function as a full defence (resulting in acquittal) to any offence committed with the purpose of defending or protecting oneself or another from the use or threat of force, if the act committed in defence is reasonable in the circumstances.

Elements of the defence in s 34(1)

-the accused reasonably believes that force, or a threat of force, is being used/made against her or another;

-the act constituting offence is committed for purpose of defending or protecting self/another;

-the act committed is reasonable in the circumstances.

Section 34(2) sets out factors for assessing whether the act was “reasonable in the circumstances,” but the list is not exhaustive. (The factors indicate that the objective standard in 34(1) should be contextualized to reflect the accused’s characteristics and history.)

Factors in 34(2) include the nature of the force or threat; the availability of alternative means of responding; imminence; size, age, gender, and physical capabilities of the parties; past history and nature of their relationship; and proportionality between force used and force or threat defended against.

Section 34(1) will not apply if the force used or threatened is lawful – unless the person who commits an act (in self defence) believes on reasonable grounds that the other person is acting unlawfully. [s. 34(3)]

The accused must raise an air of reality for each element of the defence (in s. 34(1)) before it may be put to the jury.

The burden then shifts to the Crown to prove BARD that one or more elements do not apply (i.e., there is no reasonable possibility that one or more of them could be true).

Specific points: #

When assessing the reasonableness of a person’s belief in being threatened, expert evidence is admissible if the perceptions at issue are informed by a psychological syndrome or context (“battered women’s syndrome” or “prison environment syndrome”) on which a lay person is not likely to be well informed. (Lavallée)

An accused may rely on self-defence where the threat of force is not immediately imminent, so long as her apprehension that there is a threat of force is reasonable, and the act carried out in self-defence is reasonable in the circumstances. (Lavallée and section 34(1))

Where a woman in an abusive relationship invokes self-defence, the fact that she had opportunity to leave the home or relationship prior to the event in question does not, on its own, render the act (committed in self-defence) unreasonable. (Lavallée)

When assessing the reasonableness of a woman’s perceptions of the existence and nature of a threat of force, or the availability of alternative means of responding, courts should consider a range of possible elements of women’s social context, including the need to protect children from abuse, the fear of losing custody, pressures to keep the family together, financial support for abused women, and the fact that leaving may not bring an end to a partner’s abusive conduct. (Malott)

An accused may make an honest but reasonable mistake as to the existence of a threat of force or assault (or whether force was being used with lawful authority) and still rely on the defence of self-defence. (Pétel and sections 34(2) and (3))

© Robert Diab, TRU Law, 2022