Autodéfense et défense d'autrui

Ang

Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois June 2021. (Rev. # 2022)

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• < Droit pénal
• < Défenses

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. The attacker/victim is the "author of his or her own deserts”

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

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

Burden

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

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

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.

Retrospectivity

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

Appellate Review

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

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.

[omis (2)]

No defence

(3) Subsection (1) [Défense – recours à la force ou menace de recours à la 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), (Jus.)

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The test in s. 34 requires three elements:

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:

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."

Air of Reality

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

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. Absent "reasonable grounds" the defence cannot be "triggered."

Mistake of Fact

The defence can still be invoked even where there is a reasonable mistake of fact. This could include a reasonable belief that the victim was armed. 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."

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." The mistaken belief, however, must be reasonable.

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

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.

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

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"..

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

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. In other words it can be seen as the "motive" for the act.

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

Time to Process and Evaluate

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

Obligation to Retreat

When the accused is alleged to have defended himself or other occupants in his home, he is not obliged to retreat. In these circumstances, a failure to retreat is not a factor in s. 34(2) analysis. 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.”

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

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." 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.

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

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

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).

34
[omis (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.

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

– CCC (CanLII), (Jus.)

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Objective and Subjective Test

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

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."

Relevant circumstances include a mistaken belief held by the accused.

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

Proportionality

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

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

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. However, too much emphasis on personal traits would improperly conflate the subjective and objective elements of analysis.

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."

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.

Pre 2013 Amendments

• Self-Defence and Defence of Another (Pre-Amendments 2013)

Case Digests

• Self-Defence and Defence of Another (Cases)

See Also

• Consent to Physical Contact