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.
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.
No defence
(3) Subsection (1) 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.
Annotations | French
- Section 34
- In order for the defence of self-defence to succeed three components must be present: (1) the catalyst; (2) the motive; (3) the response: R v Brunelle, 2022 SCC 5 at para 2; R v Khill, 2021 SCC 37 at para 51
- With respect to the catalyst component, it focuses on the accused’s state of mind and their perception of events. That state of mind or perception, however must be founded on reasonable grounds. For example: “an accused's prior violent encounters with the victim were taken into account to assess whether the accused believed on reasonable grounds that they faced an imminent threat of death or grievous bodily harm”. However, the personal circumstances of the accused cannot be interpreted in a manner that would undermine the Code’s purpose of promoting public order. In other words, the reasonableness of an accused person’s beliefs are not viewed through the lens those who are “fearful, intoxicated, abnormally vigilant or members of criminal subcultures”: R v Khill, 2021 SCC 37 at paras 52-56; R v Phillips, 2017 ONCA 752 at para 98
- With respect to the motive component, it focuses on the reasons or purpose for which the accused engaged in the act that constitutes the offence. The Code requires that the act must be taken with a view to the accused defending or protecting themselves or others from the use or threat of force. The accused’s purpose in committing the act that constitutes the offence cannot be vigilantism, vengeance or some other personal motivation: R v Khill, 2021 SCC 37 at para 59; R v Craig, 2011 ONCA 142.
- That said, an accused’s motives my change over the course of the incident. For example, an accused may take steps to defence one’s property which then evolves into a situation where they are defending themselves. “Clarity of purpose is not meant categorize the accused's conduct in discrete silos, but instead appreciate the full context of a confrontation, how it evolved and the accused's role, if any, in bringing that evolution about”: R v Khill, 2021 SCC 37 at para 61
- With respect to the response component, this considers the accused’s response to the use or threat of force. This component requires that the response be reasonable in the circumstances. “By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon.” The Court must not make the mistake of slipping into the mind of the accused – the test is not purely subjective – but rather must maintain focus on “what a reasonable person would have done in comparable circumstances”: R v Khill, 2021 SCC 37 at paras 62 and 65; R v King, 2022 ONCA 665 at para 25; R v Willemsen, 2022 ONCA 722 at para 21; R v Pilon, 2009 ONCA 248 at paras 74-75 ; R v Hodgson, 2022 NUCA 9 at para 8.
- In considering the reasonableness of the response, while there is no duty to retreat, the possibility of retreat is a relevant consideration with respect to reasonableness: R v Khill, 2021 SCC 37 at para 90; R v Willemsen, 2022 ONCA 722 at para 20.
- Similarly, a person’s “role in the incident”, a factor relevant to consideration of the reasonableness of the response, includes that they “could have taken to avoid bringing about the violent interaction”: R v Khill, 2021 SCC 37 at para 82; R v Willemsen, 2022 ONCA 722 at paras 20-21.
- If a jury acting reasonably could acquit on the basis of a defence then the defence can be said to have an air of reality. If a defence does not have an air of reality then the defence may not be considered by the trier of fact: R v Cinous, 2002 SCC 29 at para 1.
- The question of whether or not a defence has an air of reality is a question of law. “It is an error of law to put to the jury a defence lacking an air of reality, just as it is an error of law to keep from the jury a defence that has an air of reality”: R v Cinous, 2002 SCC 29 at para 55; R v Osolin, 1993 CanLII 54 (SCC); R v Davis, 1999 CanLII 638 (SCC); R v Park, 1995 CanLII 104 (SCC)