Class 7: Justification and Excuses; Self Defence 100%

Question 1

What is self defence?

Answer 1

It is the historic principle sometimes people have no choice but to use force (possibly even deadly force) to defend themseleves

Question 2

Does self defence have an objective or subjective component?

What is the three part test, and what does each have?

Answer 2

Both subjective AND objective.

1. Threat of force (subjective)
2. Defensive purpose (subjective)
3. Proportional (objective)

Question 3

What is the general key to avoiding liability for self defence?

Answer 3

The key to not facing criminal liability is that the persons actions must not have exceeded permissible limits in law (reasonableness and proportionality)

Question 4

Is self defence found in the criminal code, common law, or both?

Answer 4

Both

Question 5

What are the three part test of self defence?

What fault standard is used for each?

Answer 5

1) A reasonable perception of force against them or another person or a threat of force

(subjective perception from the accused; objectively verified by court)

2) A defensive purpose associated with the accused’s actions
(accused’s subjective state of mind)

AND

3) The accused’s actions must be reasonable in the circumstances

(objective assessment)

Question 6

Can you use self defence on cops?

Answer 6

Technically yes. Cops who are legally doing their job and you hurt them, you cannot claim self defence.

If they are being unlawful, you can claim self defence

Question 7

For section 34 Defence of Person, it lists 10 factors. It says “ A court should consider these factors BUT IS NOT LIMITED TO THEM”

What does that mean?

Answer 7

It is not an exhaustive list, they can take in other factors not included on the list.

Question 8

R v Lavalee 1990

Facts: Women was getting beat constantly by her husband and one day she killed him when he was walking away.

Issue: Is this self defence?

Is BWS a defence?

(Battered Wife Syndrome)

Answer 8

Holding

The battered wife syndrome was used in determine the reasonableness of her actions.

BWS is not a defence of itself.

She was charged with murder and convicted as the three core test, there was not a reasonable expectation harm/it was unreasonable.

Question 9

R v Malott 1998

Facts: She got beat. Evidence of BWS was given. She was convicted.

Issue:

Can she be acquitted because of Battered Wife Syndrome? (BWS)

Answer 9

Holding:

SCC affirmed the conviction.

Court affirmed she cannot use BWS as a defence

Claims BWS is not a legal defence, just because it exits does not mean someone is entitled to an equal. BWS can be used to determine the reasonableness of the actions more than anything

Question 10

What is the most important part of using BWS?

Answer 10

To attest to the women’s mental state.

Question 11

Is BWS a legal defence?

Do you get an acquittal?

Answer 11

No.

You do not automatically get an acquittal because of BWS

Question 12

For self defence, do you need an imminent threat?

Answer 12

NO

Question 13

Dean calls each part of the self defence test something unique. What does he call each part?

What test is used for each part?

Part 1

Part 2

Part 3

Answer 13

1 – the accused must believe, on reasonable grounds, that force is being used or threatened against him.
Subjective
[the trigger or catalyst]

2 – the act must be done for the purpose of defending himself.
Subjective
[the motive]

3 – the act must be reasonable in the circumstances.
Objective
[the response]

Question 14

R v. Khill 2020

Facts: Accused with some military training investigates noises outside his house. He finds someone and ends up killing him. Charged with Murder. Claims self defence

Issue: What is the three part test for self defence?

What standard is each part assessed on?

Answer 14

Holding:

Self-defence as defined in s. 34(1) has three elements

1 – the accused must believe, on reasonable grounds, that force is being used or threatened against him: s. 34(1)(a) [the trigger or catalyst]

(Subjective, objectively verified)

2 – the act must be done for the purpose of defending himself: s. 34(1)(b) [the motive]

(Subjective)

3 – the act must be reasonable in the circumstances: s. 34(1)(c) [the response]

(Objective)

Question 15

Regarding the current Self defence test. The first step is that the accused must have a substantive belief that force is being used or threatened against them.

Comment on the belief needed.

Answer 15

In order for the defence to be triggered, the belief must be based on reasonable grounds, which imports an objective assessment of the accused’s belief (blends objective and subjective considerations – the subjective perception is objectively verified)

The question is not what the accused perceived as reasonable based on his characteristics and experiences but rather what a reasonable person with those characteristics and experiences would perceive

Question 16

Regarding the current Self defence test.

The second step asks why he did the act.

What are the only ways you can fulfill this element?

Answer 16

Can only fulfill this element if it was for a defensive or protective purpose.

Anything else and this defence disappears.

Question 17

Regarding the self defence test. The third step asks whether the act was reasonable in the circumstances

Is it on a subjective or objective basis or both?

Answer 17

The act which would otherwise be criminal, is not criminal if it was reasonable in the circumstances

Brings s. 34(2) factors onto play: 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 factors listed within 34(2)

Blends objective and subjective considerations.

The weight to be assigned to any given factor listed in 34(2) is left in the hands of the trier of fact

Question 18

R v Kong 2005

Facts: Stabbing during confrontation in alley behind nightclub; accused convicted of manslaughter at trial as the guy died.

Issue: What is the air of reality test?

Answer 18

Holding

Whether or not there is an air of reality is a question of law

Test: whether there is evidence upon the record which a properly instructed jury acting reasonably could aquit if it accepted that evidence as true.

The question is not just whether there is evidence in some general sense, but whether there is evidence capable of forming the basis for an acquittal”

ABCA in Kong said no air of reality to have put self-defence to jury, upheld conviction for manslaughter; SCC says it should have been, ordered a new trial.

Question 19

R v Petel 1994

Facts: Accused shot a man who lunged at him. Charged with second degree murder.

Issue: At the trial, in reply to a question from the jury, the judge indicated that the act or threat giving rise to self‑defence must have taken place on the evening of the crime, and that the previous threats or acts are only relevant in assessing the assault on the evening of the crime, not the murder.

Was that correct answer?

Answer 19

Holding:

NO.

Previous history between the parties can be relevant to determining the accused state of mind at the time of the incident.

In this case previous threats may help the jury to decide whether threats were made on the evening of the crime, they are also very relevant in determining what the accused believed, not only concerning the existence of the threats, but also concerning her apprehension of a risk of death or grievous bodily harm and her belief in the need to use deadly force.

Question 20

What is the three part test for defence of property?

What does peaceable possession mean?

Answer 20

A successful claim of defence of property requires:

1) A reasonable perception of a specified threat to property in one’s peaceable possession

2) A defensive purpose associated with the accused’s actions.

3) The accused’s actions must be reasonable in the circumstances.

“peaceable possession” is interpreted to mean that the possession of property must not be seriously challenged by others.

Must argue you are in peaceable possession of the property before you can assert a right to defend it.

This requirement limits the availability of the defence to situations that are appropriate (the law is concerned with maintaining public order).

Question 21

R v Cormier 2017

Facts: Accused took refuge in his fathers home after receiving threats. Victim went to accused house and the accused killed him. He argued self defence.

Issue:

1) Does the ability to retreat mean you cannot claim self defence?

Answer 21

Holding:

Court states the ability to retreat is a factor to be considered, but is not determinative of whether someone can justifiably defend themselves from a threat; new trial ordered

Question 22

R v Baxter 1975

Facts: Dispute between two people of property. Accused fired guns at people on his property. Charged with attempted murder

Issue: Can he claim defence of property?

Answer 22

Holding:

The court found that there was no evidence of a reasonable apprehension of fear on the part of the appellant as to the property, and his right to use force to prevent harm was better dealt with under the self-defence/defence of person provisions

Good discussion about “no more force than necessary” which has subjective and objective components to it

Question 23

R. v. Szczerbaniwicz 2010

Facts: The general in the military had an argument with his wife. She ruined his degree, he pushed her down the stairs. Charged with assault. Accused argues he did apply force but he was protecting his property

Issue:

1) What is the test for defence of property?

2) Did he use too much force?

3) What fault standard is used for the third part of the test?

4) What is the proportionality approach?

Answer 23

Holding:
1) Test for defence of property

1) Threat to the property
2) Peaceful possession and defensive purpose
3) Proportionate

2) The military judge found that the accused used more force than was necessary in defence of his personal property.

3) Court held no more force than necessary is based on objective and subjective.

4) SCC also discussed the proportionality approach and agreed the actions were too forceful

Question 24

Summary 1

1) What is the key to not facing criminal liability for self defence?

2) What are the three core elements of self defence?

3) What standard is used for each element?

4) The factors governing what is reasonable, is it exhaustive?

Answer 24

The key to not facing criminal liability is that the persons actions must not have exceeded permissible limits in law (reasonableness and proportionality)

There are three core elements:

1) A reasonable perception of force (subjective perception of the accused; objectively verified)

2) A defensive purpose associated with the accused’s actions (accused’s subjective state of mind)

3) The accused’s actions must be reasonable in the circumstances (objective assessment)

4) The factors are not exhaustive but rather can include more options.

Question 25

Summary 2:

What is the air of reality test?

Answer 25

Air of reality test

Whether or not there is an air of reality is a question of law

Test: whether there is evidence upon the record which a properly instructed jury acting reasonably could aquit if it accepted that evidence as true.

The question is not just whether there is evidence in some general sense, but whether there is evidence capable of forming the basis for an acquittal”

Question 26

Summary 3:

Are previous histories between parties relevant for self defence?

Answer 26

Yes.

Previous history between the parties can be relevant to determining the accused state of mind at the time of the incident. The history is also very relevant in determining what the accused believed, not only concerning the existence of the threats, but also concerning their apprehension of a risk of death or grievous bodily harm and her belief in the need to use deadly force.

Question 27

Summary 4:

What does a successful claim of defence of property require?

(What is the three part test)

Answer 27

A successful claim of defence of property requires:

1) A reasonable perception of a specified threat to property in one’s “peaceable possession”.

2) A defensive purpose associated with the accused’s actions.

3) The accused’s actions must be reasonable in the circumstances.

“peaceable possession”:(must argue you are in peaceable possession of the property before you can assert a right to defend it)

This requirement limits the availability of the defence to situations that are appropriate (the law is concerned with maintaining public order).

The ability to retreat is a factor to be considered, but is not determinative of whether someone can justifiably defend themselves from a threat

Question 28

Summary 5:

1) For defence of property, what force is needed?

2) Comment about the subjective component for self defence of property.

3) Comment about the objective component for self defence of property.

Answer 28

1) “no more force than is necessary” (in all the circumstances)

2) A reasonable perception of a specified threat to property in one’s “peaceable possession”. (subjective)

2) A defensive purpose associated with the accused’s actions. (subjective)

3) The accused’s actions must be reasonable in the circumstances. (objective)