Canadian Judicial Council

Self-defence

(Repealed as of March 11, 2013)

Table of Contents

Defence 34.1

Self-defence absent an intent to cause death or grievous bodily harm (s. 34(1))

Defence 34.2

Self-defence intentionally causing death or grievous bodily harm (s. 34(2))

Defence 37

Preventing Assault — Extent of justification (s. 37)

DEFENCE INSTRUCTIONS

Defence 34.1

Self-defence absent an intent to cause death or grievous bodily harm (s. 34(1))[1]

I will now instruct you on the issue of self-defence.[2]

[1]NOA is justified in using force to defend himself/herself and must be acquitted if all of the following four conditions are present:

NOA used force to repel an unlawful[3] assault (or what s/he reasonably perceived to be an unlawful assault)[4] on him/her by NOC; and
NOA did not provoke the assault by NOC; and
In using force, NOA did not intend to kill or cause grievous bodily harm to NOC; and
NOA used no more force than was necessary to defend himself/herself.

Unless the Crown proves beyond a reasonable doubt that at least one of these conditions for self-defence was absent, you must acquit NOA of (specify offence).

NOA is not required to prove that s/he acted in self-defence. The Crown must prove beyond a reasonable doubt that s/he did not.

[2]To decide whether the Crown has proved beyond a reasonable doubt that NOA did not act in self-defence when s/he applied force to NOC, you will have to consider four questions:

Has the Crown proved beyond a reasonable doubt that NOC did not assault NOA (or, that NOA did not reasonably believe that NOC assaulted him/her)?
Has the Crown proved beyond a reasonable doubt that NOA provoked the assault?
Has the Crown proved beyond a reasonable doubt that NOA intended to kill or cause grievous bodily harm to NOC?
Has the Crown proved beyond a reasonable doubt that the force NOA used was more than what was necessary to defend himself/herself?

If each of you finds that the answer to one or more of these questions is “yes,” the defence of self-defence (under s. 34(1))[5] fails. It does not matter if you do not all agree on which of these questions is answered “yes.”

If you all agree that the answer to all four questions is “no”, the conditions for self-defence are present and you must acquit NOA of (specify offence).

I will now review each of these questions with you.

[3]First – Has the Crown proved beyond a reasonable doubt that NOC did not assault NOA (or, that NOA did not reasonably believe that NOC assaulted him/her)[6]?

If it has, the defence of self-defence (under s. 34(1)) fails.

Assault includes the application of force or a threat to apply force. The force could be great or even quite slight. Consider whether NOC applied force to NOA, or threatened to apply force to NOA.

Judges may wish to review the relevant evidence within each question or wait until the summing up below. This will depend on the evidence in each case.

[4]Second – Has the Crown proved beyond a reasonable doubt that NOA provoked the assault?[7]

If it has, the defence of self-defence (under s. 34(1)) fails.

If NOA was assaulted, consider whether s/he provoked the assault by any means, including blows, words or gestures. You must consider the entire sequence of events to determine whether NOA caused NOC to assault him/her.

(Consider whether to review relevant evidence here)

[5]Third – Has the Crown proved beyond a reasonable doubt that NOA intended to kill or cause grievous bodily harm to NOC?

If it has, the defence of self-defence (under s. 34(1)) fails.

A person intends to kill another when he or she means to cause the other person’s death.

A person intends to cause grievous bodily harm when he or she means to cause very serious hurt or injury. “Grievous bodily harm” means any significant hurt or injury that interferes with a person’s physical well-being in a very serious or severe way[8]. It need not be permanent or life-threatening but it must result from the force applied by NOA to NOC. Ask yourselves whether NOA’s conduct contributed significantly to the bodily harm done to NOC and whether that is what s/he meant to do.

(Consider whether to review relevant evidence here)

[6]Fourth – Has the Crown proved beyond a reasonable doubt that the force NOA used was more than what was necessary to defend himself/herself?

If it has, the defence of self-defence (under s. 34(1)) fails.

Consider the amount of force used, not just its consequences.

A person is not justified in using more force than necessary to defend himself or herself. However, a person cannot be expected to measure precisely the exact amount of force necessary. A person does not usually have time for calm or measured reflection while being assaulted and might make a reasonable mistake about the amount of force necessary.

Take into account NOA’s perception of the events at the time and ask yourselves whether a reasonable person in the circumstances would consider the force used necessary.[9]

(Consider whether to review relevant evidence here)[10]

Where there is character evidence with respect to the alleged victim, further elaboration along the following lines will be required:

You have heard evidence of previous violent conduct by NOC against NOA (and/or against others) (and/or that NOC had a reputation for violent conduct). Consider this evidence when you examine the defence of self-defence.

This evidence might help you to assess whether NOA was the victim of an unprovoked assault by NOC.

In addition, if NOA was aware of NOC’s previous violent conduct (or his/her reputation for violent conduct), this evidence might help you to assess whether NOA reasonably believed that s/he was the victim of an unprovoked assault by NOC, and whether s/he reasonably believed that the force s/he used was no more than what was necessary to defend himself/herself.

However, you must not use this evidence to conclude that NOC was a bad person, and therefore got what s/he deserved even if s/hewas not the aggressor on this occasion.

To sum up:

(Consider whether to review relevant evidence here)

Ask yourselves:

[7]First – Has the Crown proved beyond a reasonable doubt that NOC did not assault NOA (or, that NOA did not reasonably believe that NOC assaulted him/her)?

If it has, the defence of self-defence (under s. 34(1)) fails. If not, then consider the next question.

[8]Second – Has the Crown proved beyond a reasonable doubt that NOA provoked the assault?

If it has, the defence of self-defence (under s. 34(1)) fails. If not, then consider the next question.

[9]Third – Has the Crown proved beyond a reasonable doubt that NOA intended to kill or cause grievous bodily harm to NOC?

If it has, the defence of self-defence (under s. 34(1)) fails. If not, then consider the final question.

[10]Fourth – Has the Crown proved beyond a reasonable doubt that the force NOA used was more than what was necessary to defend himself/herself?

If it has, the defence of self-defence (under s. 34(1)) fails. If it has not, you must acquit NOA on the basis of self-defence.

To repeat, if each of you finds that the answer to one or more of these questions is “yes”, the defence of self-defence fails. You might not all agree on the answers to these questions. But if each of you finds that the answer to one or more of them is “yes”, the defence of self-defence (under s. 34(1)) fails. It does not matter if you do not all agree on which of these questions is answered “yes”.

If you all agree that the answer to all four questions is “no”, then the conditions for self-defence are present and you must acquit NOA of (specify offence).

DEFENCE INSTRUCTIONS

Defence 34.2

Self-defence intentionally causing death or grievous bodily harm (s. 34(2))[11]

I will now instruct you on the issue of self-defence.[12]

[1]NOA is justified in killing or causing grievous bodily harm to defend himself/herself and must be acquitted if all of the following three conditions are present:

NOA killed or caused grievous bodily harm to NOC to repel an unlawful[13] assault (or what s/he reasonably perceived to be an unlawful assault)[14] on him/her by NOC; and
NOA reasonably believed that s/he would be killed or suffer grievous bodily harm as a result of NOC’s assault; and
NOA reasonably believed that s/he could not otherwise preserve himself/herself from death or grievous bodily harm.

Unless the Crown has proved beyond a reasonable doubt that at least one of these conditions for self-defence was absent, you must acquit NOA of (specify offence).

NOA is not required to prove that s/he acted in self-defence. The Crown must prove beyond a reasonable doubt that s/he did not.

[2]To decide whether the Crown has proved beyond a reasonable doubt that NOA did not act in self-defence when s/he applied force to NOC you will have to consider three questions:

1.Has the Crown proved beyond a reasonable doubt that NOC did not assault NOA (or, that NOA did not reasonably believe that NOC assaulted him/her)?

2.Has the Crown proved beyond a reasonable doubt that NOA did not reasonably believe that s/he would be killed or suffer grievous bodily harm as a result of NOC’s assault?

3.Has the Crown proved beyond a reasonable doubt that NOA did not reasonably believe that s/he could not otherwise preserve himself/herself from death or grievous bodily harm?

If each of you finds that the answer to one or more of these questions is “yes,” the defence of self-defence (under s. 34(2))[15] fails. It does not matter if you do not all agree on which of these questions is answered “yes.”

If you all agree that the answer to all three questions is “no”, then the conditions for self-defence are present and you must acquit NOA of (specify offence).

I will now review each of these questions with you.[16]

[3]First – Has the Crown proved beyond a reasonable doubt that NOC did not assault NOA (or, that NOA did not reasonably believe that NOC assaulted him/her)?[17]

If it has, the defence of self-defence (under s. 34(2)) fails.

The question is whether NOC assaulted NOA and, if s/he did, whether NOA killed NOC or caused him/her grievous bodily harm in repelling that assault.

Assault includes the application of force or the threat to apply force. The force could be great or even quite slight. Consider whether NOC applied force to NOA, or threatened to apply force to NOA.

In this context, it does not matter whether NOA provoked NOC. It also does not matter whether NOA intended to kill NOC or to cause him/her grievous bodily harm.

Judges may wish to review the relevant evidence within each question or wait until the summing up below. This will depend on the evidence in each case.

[4]Second – Has the Crown proved beyond a reasonable doubt that NOA did not reasonably believe that s/he would be killed or suffer grievous bodily harm as a result of NOC’s assault?

If it has, the defence of self-defence (under s. 34(2)) fails.

Consider the evidence and ask yourselves whether NOA had reasonable grounds to believe that s/he would be killed or suffer grievous bodily harm. “Grievous bodily harm” means any significant hurt or injury that interferes with a person’s physical well-being in a very serious or severe way.[18] It need not be permanent or life-threatening. You must consider the entire sequence of events to determine whether anything said or done by NOC could have given NOA reason to have such a belief. In particular, consider whether NOA reasonably believed that s/he would be killed or suffer grievous bodily harm from either the violence of NOC’s original assault or from the violence of NOC’s continued attack.

In considering this question, you must take into account what NOA perceived in the circumstances. The question is whether s/he reasonably feared for his/her life or safety. Even if s/he made an honest and reasonable mistake that s/he had been assaulted by NOC, or s/he mistakenly believed that his/her life and safety were in danger, you must consider whether s/he actually had reasonable grounds for those beliefs.[19] In addition to considering this question from NOA’s perspective, you must also take into account whether those beliefs would be reasonable from the viewpoint of an ordinary person placed in the same circumstances.

To determine whether NOA had a reasonable apprehension of death or grievous bodily harm, consider the entire sequence of events, including (the history of the relationship between the parties and)[20] how immediate the danger was.

(Consider whether to review relevant evidence here)

[5]Third – Has the Crown proved beyond a reasonable doubt that NOA did not reasonably believe that s/he could not otherwise preserve himself/herself from death or grievous bodily harm?

If it has, the defence of self-defence (under s. 34(2)) fails.

People are justified in causing death or grievous bodily harm to others in self-defence, but only if they reasonably believe they cannot otherwise protect themselves from death or grievous bodily harm.

You must take into account what NOA perceived in the circumstances. Consider all of the evidence, including anything said or done in the circumstances of this case, and ask yourselves whether it was reasonable for NOA to believe that s/he had no other means to preserve himself/herself from death or grievous bodily harm.

(Consider whether to review relevant evidence here)

Where there is character evidence with respect to the alleged victim, further elaboration along the following lines will be required:

This evidence might help you to assess whether NOA was the victim of an assault by NOC.

In addition, if NOA was aware of NOC’s previous violent conduct (or his/her reputation for violent conduct), this evidence might help you to assess whether NOA reasonably believed that s/he was the victim of an assault by NOC that would result in death or grievous bodily harm, and whether s/he reasonably believed that s/he could not otherwise preserve himself/herself.

However, you must not use this evidence to conclude that NOC was a bad person, and therefore got what s/he deserved even if s/hewas not the aggressor on this occasion.

To sum up:

(Consider whether to review relevant evidence here)

Ask yourselves:

[6]First – Has the Crown proved beyond a reasonable doubt that NOC did not assault NOA (or, that NOA did not reasonably believe that NOC assaulted him/her)?

If it has, then the defence of self-defence (under s. 34(2)) fails. If not, you must consider the next question.

[7]Second – Has the Crown proved beyond a reasonable doubt that NOA did not reasonably believe that s/he would be killed or suffer grievous bodily harm as a result of NOC’s assault?

If it has, the defence of self-defence (under s. 34(2)) fails. If not, then consider the final question.

[8]Third – Has the Crown proved beyond a reasonable doubt that NOA did not reasonably believe that s/he could not otherwise preserve himself/herself from death or grievous bodily harm?

If it has, then self-defence (under s. 34(2)) fails. If it has not, then you must acquit NOA on the basis of self-defence.

To repeat, if each of you finds that the answer to one or more of these questions is “yes”, the defence of self-defence fails. You might not all agree on the answers to these questions. But if each of you finds that the answer to one or more of them is “yes”, the defence of self-defence (under s. 34(2)) fails. It does not matter if you do not all agree on which of these questions is answered “yes”.

If you all agree that the answer to all four questions is “no”, then the conditions for self-defence are present and you must acquit NOA of (specify offence).

DEFENCE INSTRUCTIONS

Defence 37

Preventing Assault — Extent of justification (s. 37)[21]

I will now instruct you on the issue of self-defence.[22]

[1]NOA is justified in using force to defend himself/herself (and/or anyone under his/her protection) and must be acquitted if the following two conditions are present:

1.NOA used force to repel an assault or the repetition of an assault (or what s/he reasonably perceived to be an assault)[23] on him/her (and/or anyone under his/her protection) by NOC; and

2.NOA used no more force than what was necessary to prevent the assault or its repetition.