Note[1]
Note: The only Supreme Court of Canada decision interpreting the new provision is R v Khill, 2021 SCC 37. There, the majority (per Martin J) stated that the new provision “changed the law of self-defence in significant ways by broadening the scope and application of self-defence and employing a multifactorial reasonableness standard” (para 39). Further, “the defence is now more open and flexible and additional claims of self-defence will be placed before triers of fact” (para 44).
I will now instruct you on the issue of self-defence.[2]
1. (NOA) believed that force [or the threat of force] was being used against him/her [or against another person] and (NOA)’s belief was based on reasonable grounds;
2. (NOA) committed the act for the purpose of defending or protecting himself/herself [or another person] from the use [or the threat] of force; and
3. (NOA)'s act was reasonable in the circumstances.
It is not up to (NOA) to prove that s/he acted in self-defence. Rather, it is up to the Crown to prove beyond a reasonable doubt that s/he did not.
If the Crown proves beyond a reasonable doubt that at least one of these three conditions is absent, the defence of self-defence fails.
1. Has the Crown proved beyond a reasonable doubt that (NOA) did not believe that force [or the threat of force] was being used against him/her [or another person], or that (NOA)’s belief was not based on reasonable grounds?
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 [or another person] from the use [or the threat] of force?
3. Has the Crown proved beyond a reasonable doubt that (NOA)’s act was not reasonable in the circumstances?
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 self-defence are present, and you must acquit (NOA) of (specify offence).[3]
I will now review each of these questions with you.
If it has, the defence of self-defence fails.
The focus of this element is on (NOA)’s belief that force [or the threat of force] was being used against him/her based on his/her perception of the circumstances, and whether his/her perception was reasonable.
In determining whether (NOA)’s belief was reasonable, consider whether an ordinary person who shares (NOA)’s attributes, experiences and circumstances would have held the same belief If so, (NOA)’s belief was reasonable [even if it was the result of an honest mistake].[4]
Reasonableness is not considered through the eyes of individuals whose perceptions are based on factors such as racism, intoxication, excessive fear, or abnormal vigilance (specify relevant and irrelevant attributes, experiences and circumstances).[5]
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 the answer to the first question is yes, the defence of self-defence fails.
If it has, the defence of self-defence fails.
The focus here is on (NOA)’s purpose, that is, whether his/her act was carried out in order to defend or protect himself/herself [or another person] from the use [or the threat] of force. (NOA)’s purpose must be defensive, not vengeful.[6] (NOA)’s action must not have been undertaken for the purpose of vigilantism, vengeance, or some other personal motivation.[7]
(Consider whether to review relevant evidence here).
If the answer to the second question is yes, the defence of self-defence fails.
If it has, the defence of self-defence fails.
The focus here is on the reasonableness of (NOA)’s conduct. The question is what an ordinary person who shares (NOA)’s attributes, experiences and circumstances (specify relevant and irrelevant attributes, experiences and circumstances) would have done in (NOA)’s position.[8] I remind you that reasonableness is not considered through the eyes of individuals whose perceptions are based on factors such as racism, intoxication, excessive fear, or abnormal vigilance.
Note: Where there is an air of reality to the issue of honest but mistaken belief by the accused in relation to his or her perception of the circumstances, give the following instruction:
If (NOA) honestly but mistakenly believed on reasonable grounds that force was being used or threatened against him/her, that is a factor for you to consider in assessing whether (NOA)’s act was reasonable.[9]
In determining whether (NOA)’s act was reasonable[10] in the circumstances, you must consider the relevant circumstances of (NOA), the other people involved, and the act, including, but not limited to, the following factors:
(Refer to relevant factors below for which there is an evidentiary basis)[11]
1. the nature of the force or threat;
2. the extent to which the use of force was imminent and whether there were other means available to (NOA) to respond to the potential use of force;[12]
3. (NOA)’s role in the incident;
4. whether any of the people involved used or threatened to use a weapon;
5. the size, age, gender and physical capabilities of those involved in the incident;
6. 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;
7. any history of interaction or communication among the people involved in the incident;
8. the nature and proportionality of (NOA)’s response to the use or threat of force;[13] and
9. whether (NOA)’s act was in response to a use or threat of force that (NOA) knew was lawful.
The words “role in the incident”[14] refer to (NOA)’s conduct – such as any actions, omissions or exercises of judgment – during the course of the incident, from beginning to end, that is relevant to deciding whether the (NOA)’s act was reasonable in the circumstances. You must consider (NOA)’s role and the extent of his/her responsibility, if any, for creating, causing or contributing to the confrontation that resulted in (NOA)’s act.[15]
Consider all of the relevant factors as a whole in determining whether (NOA)’s act was reasonable. It is for you to decide how much weight to give to any one of these factors in your assessment of the reasonableness of (NOA)’s act.[16]
(Consider whether to review relevant evidence here).
If the answer to the third question is yes, the defence of self defence fails.
To sum up:
(Review relevant evidence here if you have not done so already).
Ask yourselves:
If it has, the defence of self-defence fails. If not, then consider the next question.
If it has, the defence of self-defence fails. If not, then consider the next question.
If it has, the defence of self-defence fails.
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”.[17]
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).
[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). The new legislation has been applied prospectively from the date of coming into force, not retrospectively to conduct that took place prior to that date: R. v. Evans, 2015 BCCA 46 at para 26; R. c. Bengy, 2015 ONCA 397 at para 70.
[2] Note that this instruction does not address s 34(3) of the Criminal Code, which deals with the situation where force or the threat of force may have been required or authorized by law.
[3] Make clear that the accused cannot be convicted of the offence charged or any included offences. For example, if the accused is charged with murder, he or she cannot be convicted of murder or manslaughter if the conditions for self-defence are present: R v Robertson, 2020 SKCA 8, at para 57.
[4] See R v Khill, at para 57. It is unnecessary to instruct the jury on the accused’s mistaken belief that force was going to be used if there is evidence of an actual assault and no air of reality to the claim of mistaken belief: R v Billing, 2019 BCCA 237, at para 13.
[5] The accused’s beliefs are to be “assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused’s belief or actions” (R v Khill, above, at para 54). However, not all personal characteristics or experiences are relevant. “Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures” (at para 56). The standard is also “informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms” (at para 56, quoting R v Tran, 2010 SCC 58 at para 34). Accordingly, racist views cannot form the basis of a reasonable belief (at para 56).
The Ontario Court of Appeal held in R v Khill that the accused’s personal characteristics and experiences (eg military training) should be taken into account in determining the reasonableness of the accused’s belief, unless excluded for policy reasons: R v Khill, 2020 ONCA 151 at para 51. On appeal to the SCC, the majority stated: “For example, even if Mr. Khill’s military training qualifies as a relevant personal characteristic, it does not convert the reasonableness determination into a personal standard built only for him, much less a lower standard than would otherwise be expected of a reasonable person in his shoes. The law of self-defence cannot offer different rules of engagement for what happens at the homes of those with military experience or allow ‘training’ to replace discernment and judgment. Section 34(1)(c) asks whether the ‘act committed is reasonable in the circumstances’. It does not ask whether Mr. Khill’s military training makes his act reasonable nor whether it was reasonable for this accused to have committed the act. The question is: what would a reasonable person with similar military training do in those civilian circumstances?” (para 65).
[6] R v Charette, 2018 QCCA 452 at para 18.
[7] “The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation” (R v Khill, at para 59).
[10] The jury must consider all relevant circumstances in determining whether the accused’s act was reasonable, including the amount of force used and the consequences: R v Robertson, 2020 SKCA 8, at para 35.
In R. v Levy, 2016 NSCA 45,the Court distinguished between the act (shooting a firearm) and the consequences of the act (killing the assailant). The jury should be asked to decide whether the accused’s act was reasonable, not whether killing the victim was reasonable (para 133).
[12] Courts are divided on whether there is a duty to retreat from one’s own home in the face of an attack.
In R. v. Cunha, 2016 ONCA 491, Justice Lauwers applied the old self-defence provisions but expressly noted that “there is no relevant difference, for the purposes of this case, between the old provisions and the new” (at para. 5). He applied the existing law on retreat from one’s home:
[9] It is also the law that a person who is defending himself, and other occupants of his house, is not obliged to retreat in the face of danger. In R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, this Court considered the issue of retreat at some length, and concluded at para. 55: “a jury is not entitled 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.” (Emphasis added.)
In R. v. Cormier, 2017 NBCA 10 and R. v Levy, 2016 NSCA 45, the courts considered the possibility of retreat, even in one’s home, as a factor in the reasonableness of the accused’s actions. In Cormier, Justice Richard and Justice Baird explained (later analogizing an obligation to retreat with the obligation not to enter the fray ):
[53] In her address to the jury, Crown counsel forcefully argued Mr. Cormier should have remained inside his father’s home. At first, Crown counsel argued Mr. Cormier opening the door was an element to be weighed as the jury assessed the factors enumerated in s. 34(2) in determining whether his actions were reasonable in the circumstances. Recall that s. 34(2)(b), which speaks of the imminence of the use of force, is but one of the many factors to be assessed in determining whether an act committed to defend oneself from the use or threat of force is reasonable in the circumstances.
In Levy, Justice Beveridge also noted that there was no “strict requirement that an accused run away or otherwise retreat, particularly if the force he or she faced was on their own property” (at para. 155). He went on to say that it was “now among the nine enumerated (non-exclusive) factors in s. 34(2)” (at para. 156).
[13] Where proportionality is a live issue, it may be appropriate to add the following instruction: “Keep in mind that persons who reasonably believe they are under attack may not be able to weigh with precision the exact measure of defensive action needed to repel the attack.” This instruction dervies from R v Baxter (1975), 27 CCC (2d) 96 (Ont CA). It is not mandatory, and may actually be less important under the new self-defence provisions than under the old: R v Robertson, 2020 SKCA 8 at para 43. See also R v Billing, 2019 BCCA 237 at para 23, and R v Khill, above, at para 32.
[14] Parliament chose the broad and neutral words “role in the incident” so that jurors would not have to be instructed on complex concepts such as provocation, unlawful assaults, and morally blameworthy conduct (R v Khill at para 98). This factor involves an inquiry into “whether the accused bears some responsibility for the final confrontation and whether their conduct affects the ultimate reasonableness of the act in the circumstances” (R v Khill at para 114).
[17] See R v Randhawa, 2019 BCCA 15 at para 44.