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Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

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

s. 34(1)

Note[1]

(Repealed as of March 11, 2013)

 

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:

1.   (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

2.   (NOA) did not provoke the assault by (NOC); and

3.   In using force, (NOA) did not intend to kill or cause grievous bodily harm to (NOC); and

4.   (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:

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) provoked the assault?

3.   Has the Crown proved beyond a reasonable doubt that (NOA) intended to kill or cause grievous bodily harm to (NOC)?

4.   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 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/he was 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).

[1] In some cases, it will be necessary to give instructions on more than one provision dealing with self-defence.

In others, it will be necessary to give an instruction only on s. 34(1) or s. 34(2).

Subsection 34(1) applies where the accused uses force to repel an unprovoked assault, with no intention to cause death or bodily harm. For s. 34(1) to apply, it does not matter whether the accused actually caused death or grievous bodily harm, provided that there was no intention to do so, and the accused used no more force than was necessary to defend himself or herself.

Subsection 34(2) applies where the accused caused death or grievous bodily harm, even if he or she intended to do so; it applies whether or not the assault was provoked, provided there was no reasonable alternative for the accused to protect himself or herself.

Where the accused caused death or grievous bodily harm, but there is a live issue whether he or she intended that result, it will be necessary to give an instruction on both ss. 34(1) and 34(2).

In circumstances where neither s. 34(1) nor s. 34(2) applies, s. 37, which generally is wider in scope than other provisions concerned with self-defence, might be applicable.

[2] In a case where instructions on more than one definition of self-defence must be given, words to the following effect should be used to guide the jury:

I will now instruct you on the issue of self-defence. I will give you these instructions in _______ parts because you must consider _______ definitions of self-defence.

One is based on Section ________ of the Criminal Code. The second is based on Section _______. The third (etc.).

Please listen carefully to these definitions, because each is different from the other(s).

[3] In most cases the lawfulness of the assault on the accused will not be an issue. However, if there is evidence of circumstances that could render the application of force lawful, such as evidence of consent or accident, etc., then further instructions on the definition of assault will be necessary to help the jury determine if the use of force was unlawful. See Offence 266 on Assault, and make the necessary changes to paragraphs [3] and [7] below.

[4] Where the evidence would support a mistaken belief by the accused, add the bracketed words. Subsequent questions and instructions may have to be modified accordingly.

[5] Include the bracketed words here and below when the jury is instructed on more than one provision relating to self-defence.

[6] Where the evidence would support a mistaken belief by the accused, the following sentence should be added to this instruction:

Consider the entire sequence of events and ask yourselves whether, in the circumstances, (NOA) reasonably believed that s/he was assaulted by (NOC) – even if his/her belief was actually mistaken.

[7] There is an unsettled question whether the jury must be told that the provocation must have been intentional. There is authority for the view that the jury should be so instructed: R. v. Nelson, [1992] O.J. No. 747 (C.A.); R. v. Pintar, [1996] O.J. No. 3451 (C.A.). However, where the words, acts, or gestures alleged are self-evidently provocative, an instruction on intention may not be required: R. v. Tallen, [1995] O.J. No. 1647 (C.A.).

[8] See R. v. Paice, [2005] 1 S.C.R. 339, para. 36-41 per Fish J. (concurring).

[9] Where there is an issue whether the accused misperceived the nature of the assault upon him/her, the jury should be told that the accused may rely on a reasonable but mistaken perception of how much force was necessary to defend himself/herself.

[10] Refer to any evidence suggesting that the accused’s use of force was not necessary or was excessive in the circumstances.