Canadian Judicial Council Self-Defence. (In force as of March 11, 2013)

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August Nelson
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1 Canadian Judicial Council Self-Defence (In force as of March 11, 2013)

2 1 Self-defence (Last revised March 2013) I will now instruct you on the issue of self-defence. [1] NOA is not guilty of [specify offence] if all of the following three conditions were present: 1. NOA believed on reasonable grounds that force [and/or the threat of force] was being used against him/her [or against another person]; 2. NOA committed the act for the purpose of defending or protecting himself/herself [or another person] from the use of force [or threat]; 3. NOA s act was reasonable in the circumstances. 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. 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]. [2] To decide whether the Crown has proved beyond a reasonable doubt that NOA did not act in self-defence, you will have to consider three questions. 1. Has the Crown proved beyond a reasonable doubt that NOA did not believe on reasonable grounds that force [or the threat of force] was being used against him/her [or another person]? 2. Has the Crown proved beyond a reasonable doubt that NOA did not commit the act for the purpose of defending or protecting himself/herself from the use [or threat] of force? 3. Has the Crown proved beyond a reasonable doubt that NOA s act was not reasonable in the circumstances? 1 As enacted by the Citizen s Arrest and Self-defence Act, SC 2012, c. 9, coming into force March 11, 2013 (SI/2013-5). 2

3 If each of you finds that the answer to one or more of these questions is yes, the defence of self-defence 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, the conditions for selfdefence 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 NOA did not believe on reasonable grounds that force [or the threat of force] was being used against him/her [or another person]? 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. If it has, the defence of self-defence fails. [4] Second Has the Crown proved beyond a reasonable doubt that NOA did not commit the act for the purpose of defending or protecting himself/herself from the use [or the threat of force]? If it has, the defence of self-defence fails. (Consider whether to review relevant evidence here.) [5] Third Has the Crown proved beyond a reasonable doubt that NOA s act was not reasonable in the circumstances? If it has, the defence of self-defence fails. In determining whether the act committed was reasonable in the circumstances, you must consider the relevant circumstances of NOA, the other people involved, and the act, 3

4 including, but not limited to, the following factors: (i) the nature of the force or threat; (ii) (iii) (iv) (v) (vi) (vii) 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; NOA s role in the incident; whether any of the people involved used or threatened to use a weapon; the size, age, gender and physical capabilities of those involved in the incident; the nature, duration and history of any relationship among the people involved in the incident, including any prior use or threat of force, and the nature of that force or threat; any history of interaction or communication among the people involved in the incident; (viii) the nature and proportionality of NOA s response to the use or threat of force; and (ix) whether NOA s act was in response to a use or threat of force that NOA knew was lawful. (Consider whether to review relevant evidence here.) To sum up: (Review relevant evidence here if you have not done so already.) Ask yourselves: [6] First Has the Crown proved beyond a reasonable doubt that NOA did not believe on reasonable grounds that force [or the threat of force] was being used against him/her [or another person]? If it has, the defence of self-defence fails. If not, then consider the next question. 4

5 [7] Second Has the Crown proved beyond a reasonable doubt that NOA did not commit the act for the purpose of defending or protecting himself/herself from the use [or threat] of force? If it has, the defence of self-defence fails. If not, then consider the next question. [8] Third Has the Crown proved beyond a reasonable doubt that NOA s act was not reasonable in the circumstances? If it has, the defence of self-defence fails. If 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. 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 selfdefence are present and you must acquit NOA of (specify offence). If there is an issue as to whether the force used or threatened by another person was for the purpose of doing something that the person was required or authorized by law to do in the administration or enforcement of the law, then you must add to the end of the last sentence of paragraph [8] these additional words: subject to one final consideration, which I will now explain to you and then go on to give these further instructions: Even if you find that the conditions for self-defence as explained above are present, there is one further matter you must consider in this case. Self-defence does not apply if the person using or threatening to use force was authorized by law to do so unless NOA believed on reasonable grounds that the person did not have that lawful authority. Therefore, ask yourself the following questions: Has the Crown proved beyond a reasonable doubt that the person using or threatening to use force was required or authorized by law to do so in the administration or enforcement of the law? 5

6 If so, has the Crown proved beyond a reasonable doubt that NOA did not believe on reasonable grounds that the person using or threatening to use force was acting unlawfully? If your answer to both questions is yes, then self-defence cannot apply in the circumstances of this case. 6

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