Self-Defence and Defence of Another

From Criminal Law Notebook
This page was last substantively updated or reviewed June 2021. (Rev. # 95527)

General Principles

Self-defence is the right in certain circumstances to respond to force, or threats of force, with force in order to stop the attacker/victim.[1] The attacker/victim is the "author of his or her own deserts”[2]

The defence is a form of justification.[3] Unlike excuses, a justification will not focus on the "human frailties" of the accused. It will render the acts morally acceptable.[4]

Self-defence is entirely codified and does not have application in the common law.[5]

Burden

Once the defence is raised the crown must prove the unavailability of the defence beyond a reasonable doubt.[6]

It is not necessary that the accused prove that there was no reasonable way of withdrawing or retreating from the situation.[7]

Evidence

Good character evidence of the victim will often be relevant and admissible.

Evidence of the victim's "peaceful disposition" is admissible as part of the Crown's case. [8]

Retrospectivity

There is some division on whether the March 11, 2013 amendments apply retrospectively on offences occurring prior to the date of the amendment.[9] In Ontario, s. 34 is not retrospective.[10]

Appellate Review

Findings of a trial judge on reasonableness of the use of force is afforded deference.[11]

  1. ↑ R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at para 20
  2. ↑ Ryan, ibid., at para 20
  3. ↑ Ryan, ibid., at para 24
  4. ↑ Ryan, ibid., at para 24
  5. ↑ Ryan, ibid., at para 22
  6. ↑ R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J
  7. ↑ R v Watson, 2010 ONSC 6153 (CanLII), per Lederer J
  8. ↑ R v Krasniqi, 2012 ONCA 561 (CanLII), 291 CCC (3d) 236, per LaForme JA, at paras 60 to 66
  9. ↑ Not retrospective:
    R v Evans, 2013 BCSC 462 (CanLII), 278 CRR (2d) 228, per Fisher J
    R v Wang, 2013 ONCJ 220 (CanLII), OJ No 1939, per Pringel J
    R v Simon, 2013 ABQB 303 (CanLII), 558 AR 384, per Moreau J
    R v Carriere, 2013 ABQB 645 (CanLII), 110 WCB (2d) 709, per Wakeling J
    R v Huth, 2013 BCSC 2086 (CanLII), BCJ No 2086, per Macaulay J
    Retrospective:
    R v Pankiw, 2014 CanLII 1391 (SK PC), per Labach J
    R v LAOS, 2013 BCPC 166 (CanLII), BCJ No 1418, per Brooks J
    R v Caswell, 2013 SKPC 114 (CanLII), 421 Sask R 312, per Morgan J
    R v Hunter, 2013 NWTSC 79 (CanLII), 109 WCB (2d) 657, per Shaner J
  10. ↑ Ont.:
    R v Bengy, 2015 ONCA 397 (CanLII), 325 CCC (3d) 22, per Hourigan JA
    cf. R v Trudell, 2013 ONSC 6092 (CanLII), OJ No 4412, per Gorman J
    and R v Pandurevic, 2013 ONSC 2978 (CanLII), 298 CCC (3d) 504, per MacDonnell J
  11. ↑ R v Met, 2014 ABCA 157 (CanLII), per curiam, at para 19
    R v Abdulle, 2014 ABCA 52 (CanLII), 569 AR 142, per curiam, at para 8

Requirements

The current test for a defence of self-defence is set out in s. 34:

Defence — use or threat of force

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;
(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.

[omitted (2)]

No defence

(3) Subsection (1) [Defence – use or threat of force] 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.

R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F); 2012, c. 9, s. 2.

– CCC (CanLII), (DOJ)

Note up: 34(1) and (3)

The test in s. 34 requires three elements:[1]

  1. Reasonable Belief (s. 34(1)(a)): "the accused must reasonably believe that force or threat of force is being used against him or someone else";
  2. Defensive Purpose (s. 34(1)(b)): "the subjective purpose for responding to the threat must be to protect oneself or others; and"
  3. Reasonable Response (s. 34(1)(c)): "the act committed must be objectively reasonable in the circumstances".

Expressed in another way, the consideration can be broken down to the following elements:[2]

  1. the catalyst;
  2. the motive; and
  3. the response.
Objective Elements

When considering the objective component to the defence, "the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection."[3]

Air of Reality

The court cannot consider a defence under s. 34 unless there is an air-of-reality to the claim.[4]

  1. ↑ R v Cunha, 2016 ONCA 491 (CanLII), 337 CCC (3d) 7, per Lauwers JA, at para 6
    R v Bengy, 2015 ONCA 397 (CanLII), 325 CCC (3d) 22, per Hourigan JA, at para 28
    R v Cormier, 2017 NBCA 10 (CanLII), 348 CCC (3d) 97, per Richard and Baird JJ, at para 40
  2. ↑ R v Zsombor, 2023 BCCA 37 (CanLII), per Frankel JA, at para 12
    R v Khill, 2021 SCC 37 (CanLII), 409 CCC (3d) 141, per Martin J, at para 51 ("The three inquiries under s. 34(1), set out above, can usefully be conceptualized as (1) the catalyst; (2) the motive; and (3) the response ...")
  3. ↑ Cunha, supra, at para 7
    R v Mohamed, 2014 ONCA 442 (CanLII), 310 CCC (3d) 123, per Rouleau JA, at para 29
  4. ↑ R v Sylvester, 2020 ABQB 27 (CanLII), per Yamauchi J, at para 235
    see also Air of Reality

First Element: Belief that Force or Threats

This first element requires that the accused had a subjective belief on reasonable grounds that the attacker posed a threat of force and that this belief was reasonable.[1] Absent "reasonable grounds" the defence cannot be "triggered."[2]

  1. ↑ R v Sylvester, 2020 ABQB 27 (CanLII), per Yamauchi J, at para 244
    Khill at paras 44 to 45
  2. ↑ Khill at para 44

Mistake of Fact

The defence can still be invoked even where there is a reasonable mistake of fact.[1] This could include a reasonable belief that the victim was armed.[2] Before the defence can be put to the jury, the judge must be satisfied that the evidence passes the threshold test requiring that "there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked and that this belief was reasonable in the circumstances."[3]

Self-defence is available where the accused was mistaken with respect to the "apprehension of the degree of danger and the nature and degree of the force necessary to defend himself."[4] The mistaken belief, however, must be reasonable.[5]

The trier-of-fact must not "weigh to a nicety" the exact measure of the accused's actions.[6]

The is to be expected that the victim and accused "in the heat of the moment, [view] the scene from different perspectives and benefiting from different information" can come to "reasonable and objectively supported" conclusions that are different. [7]

The assessment of s. 34(2) is an "inherently contextual exercise".[8]

Jury Instructions

Where the trial is before a jury, the judge should give a "Baxter instruction" explaining how the accused "cannot be expected to weigh to a nicety, the exact measure of necessary defensive action"..[9]

A failure to give a "Baxter instruction" is am error of law. However, such an error, on its own is not usually reverseable.[10]

  1. ↑ R v Cunha, 2016 ONCA 491 (CanLII), 337 CCC (3d) 7, per Lauwers JA, at para 8
  2. ↑ Cunha, ibid., at para 8
  3. ↑ Cunha, ibid., at para 8
    R v Currie, 2002 CanLII 44973 (ON CA), 166 CCC (3d) 190, per Charron JA
  4. ↑ R v Richter, 2014 BCCA 244 (CanLII), 314 CCC (3d) 543, per Willcock JA, at para 42
  5. ↑ Richter, ibid., at para 42
    R v Szczerbaniwicz, 2010 SCC 15 (CanLII), [2010] 1 SCR 455, per Abella J, at and 21 paras 20 and 21{{{3}}}
  6. ↑ R v Baxter, 1975 CanLII 1510, 27 CCC (2d) 96, per Martin JA, at p. 111
    R v Kong, 2005 ABCA 255 (CanLII), 200 CCC (3d) 19, per Fraser JA appealed to 2006 SCC 40 (CanLII), per Bastarache J
    R v Mohamed, 2014 ONCA 442 (CanLII), 310 CCC (3d) 123, per Rouleau JA, at para 29 citing Paciocco ("those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made")
    R v Hebert, 1996 CanLII 202 (SCC), [1996] 2 SCR 272, per Cory, at para 18
    R v Cunha, 2016 ONCA 491 (CanLII), 337 CCC (3d) 7, per Lauwers JA, at para 7
  7. ↑ Mohamed, ibid., at para 31
  8. ↑ R v Paul, 2020 ONCA 259 (CanLII), per Haverson Young JA, at para 42
    R v Khill, 2020 ONCA 151 (CanLII), 60 CR (7th) 233, per Doherty JA, at para 60
  9. ↑ R v Gabriel, 2018 NSCA 60 (CanLII), per Fichaud JA, at para 58
  10. ↑ R v DS, 2017 ONCA 38 (CanLII), 345 CCC (3d) 1, per Watt JA, at paras 118 to 119

Second Element: Purpose of Force

The second element requires that the accused's subjective intention to use force was exclusively for the purpose of defence.[1] In other words it can be seen as the "motive" for the act.[2]

Any use of force for a purpose other than to repel force will not be lawful.[3] You cannot use "self-defence" as a means to cause harm to someone.[4] The defence will not apply where there is an ulterior motive such as revenge, discipline or desire to control.[5]

Time to Process and Evaluate

The judge should not require the accused to accurately process and evaluate threats in a matter of seconds.[6] The situation is not to be weighed to a "nicety."[7]

  1. ↑ R v Sylvester, 2020 ABQB 27 (CanLII), per Yamauchi J, at para 252
  2. ↑ Khill at par 54
  3. ↑ R v Parker, 2013 ONCJ 195 (CanLII), 107 WCB (2d) 10, per Paciocco J, at para 35
  4. ↑ R v Flood, 2005 CanLII 28422 (ON CA), [2005] OJ No 3418, per Feldman JA, at para 32 (“you can’t use self-defence as a cloak or means to injure someone.”)
  5. ↑ Sylvester, supra, at para 252
    Khill at para 54
  6. ↑ R v RS, 2019 ONCA 832 (CanLII), per Nordheimer J, at para 35
  7. ↑ RS, ibid., at para 36

Obligation to Retreat

When the accused is alleged to have defended himself or other occupants in his home, he is not obliged to retreat.[1] In these circumstances, a failure to retreat is not a factor in s. 34(2) analysis.[2] A jury is not permitted "to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence.”[3]

The availability of retreat and failure to do so is not a "categorical" exclusion from self-defence.[4] Instead, the option to retreat is a "very relevant consideration" to determine whether there the accused had no other option but to defend himself.[5]

  1. ↑ R v Cunha, 2016 ONCA 491 (CanLII), 337 CCC (3d) 7, per Lauwers JA, at para 9
    R v Forde, 2011 ONCA 592 (CanLII), 277 CCC (3d) 1, per LaForme JA, at paras 42, 43, 55
    R v Docherty, 2012 ONCA 784 (CanLII), 292 CCC (3d) 465, per Sharpe JA, at para 21
  2. ↑ Forde, supra, at paras 54 to 55
    Docherty, supra, at paras 70 to 71
  3. ↑ Cunha, supra, at para 9
    Forde, supra, at para 55
  4. ↑ R v Abdalla, 2006 BCCA 210 (CanLII), 225 BCAC 118, per Hall JA, at para 23
    R v Richter, 2014 BCCA 244 (CanLII), 314 CCC (3d) 543, per Willcock JA
  5. ↑ Abdalla, supra, at para 24

Impairment

It is not appropriate to consider the level of the accused's impairment in determining whether the force used might have been considered necessary by the accused."[1] Nor is impairment relevant to whether "the accused reasonably believed himself to have been assaulted or under a threat of assault" or the amount of force necessary to address the threat.[2]

Intoxication affects the subjective perception of the accused. By contrast, the objective considerations assumes a sober person is facing the threat of force.[3]

Self-induced intoxication does not apply when considering the effect of diminished intelligence or capacity on the reasonableness standard.[4]

  1. ↑ R v Richter, 2014 BCCA 244 (CanLII), 314 CCC (3d) 543, per Willcock JA, at paras 41, 44
  2. ↑ Richter, ibid., at para 44
  3. ↑ R v Reilly, 1984 CanLII 83 (SCC), [1984] 2 SCR 396, per Ritchie J, at p. 405
    R v Filli, 2017 ONSC 2883 (CanLII), per Forestell J, at para 160
  4. ↑ Richter, ibid., at para 43

Third Element: Reasonableness of Circumstances

Once the first two requirements are made out, the third requirement of "reasonable response" is informed by the non-exhaustive list of factors found in s. 34(2).[1]

34
[omitted (1)]

Factors

(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.

[omitted (3)]
R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F); 2012, c. 9, s. 2.

– CCC (CanLII), (DOJ)

Note up: 34(2)

Objective and Subjective Test

The test on the third requirement is not solely an objective test.[2] The trier-of-fact should consider "how the accused perceived the relevant facts and whether that perception was reasonable."[3]

The Courts must consider whether the accused "actually apprehended the risk of death or grievous bodily harm" and then consider whether that apprehension is "normatively justified."[4]

Relevant circumstances include a mistaken belief held by the accused.[5]

Factor found in s. 34(2)(f) specifically codifies the decision of R v Lavallee, [1990] 1 SCR 852.[6]

Proportionality

Proportionality is not a necessary element, rather it is a factor to consider in the reasonableness analysis.[7]

This will include consideration of whether the accused reasonably believed that he could not otherwise preserve himself from harm.[8]

Personal Characteristics

In consideration of the objective factors, it is permissible, but not always necessary, to consider the accused's individual personality traits, including diminished intellectual capacity.[9] However, too much emphasis on personal traits would improperly conflate the subjective and objective elements of analysis.[10]

  1. ↑ R v Bengy, 2015 ONCA 397 (CanLII), 325 CCC (3d) 22, per Hourigan JA, at para 29
    R v Khill, 2020 ONCA 151 (CanLII), 60 CR (7th) 233, per Doherty JA, at para 42
  2. ↑ R v Poucette, 2021 ABCA 157 (CanLII), per curiam, at para 35
  3. ↑ R v Petel, 1994 CanLII 133 (SCC), [1994] 1 SCR 3, per Lamer CJ, at pp. 12-13
    R v Craig, 2011 ONCA 142 (CanLII), 269 CCC (3d) 61, per curiam, at para 36
  4. ↑ Craig, ibid., at para 36
  5. ↑ Khill, supra, at para 58
    Poucette, supra, at para 35
  6. ↑ Khill, supra, at para 48
  7. ↑ R v Filli, 2017 ONSC 2883 (CanLII), per Forestell J, at para 162
    R v Levy, 2016 NSCA 45 (CanLII), 337 CCC (3d) 476, per Beveridge JA, at para 112
    R v Baxter, 1975 CanLII 1510, 27 CCC (2d) 96, per Martin JA
  8. ↑ R v Sylvester, 2020 ABQB 27 (CanLII), per Yamauchi J, at para 259
  9. ↑ R v Barry, 2017 ONCA 17 (CanLII), 345 CCC (3d) 32, per Blair JA, at paras 72 to 73
  10. ↑ Barry, ibid., at para 73

Homicide

Self-defence under s. 34(2) (under the old rules) is a full justification for an intentional killing. It is to be considered in situations of "last resort" where a jury would accept that "the accused believed, on reasonable grounds, that his own safety and survival depending on killing the victim at that moment."[1]

Existence of an assault is not necessary to engage s. 34(2), it is only a question of whether the accused reasonably believe, in the circumstances, that he was being unlawfully assaulted.[2]

  1. ↑ R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J, at para 124
  2. ↑ Cinous, ibid., at para 107

Character Evidence of Violence

See also: Character Evidence

Pre 2013 Amendments

Case Digests

See Also

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