I will now instruct you on the issue of self-defence.[2]
1. (NOA) used force to repel an assault or the repetition of an assault (or what s/he reasonably perceived to be an assault)[3] on him/her (and/or anyone under his/her protection) by (NOC); and
2. (NOA) used no more force than what was necessary to prevent the assault or its repetition.
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.
1. Has the Crown proved beyond a reasonable doubt that (NOC) did not assault (NOA) (and/or someone under his/her protection) (or, that (NOA) did not reasonably believe that (NOC) assaulted him/her)[4] ?
2. Has the Crown proved beyond a reasonable doubt that (NOA) used more force than what was necessary to prevent the assault or its repetition?
If each of you finds that the answer to one or more of these questions is “yes,” the defence of self-defence (under s. 37)[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 both questions is “no”, then 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.
If it has, the defence of self-defence (under s. 37) fails.
Assault includes the application of force or the threat to apply force. The force could be great or even quite slight. Consider whether (NOC) applied or threatened to apply force to (NOA) (and/or someone under his/her protection).[7]
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 (under s. 37) 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. Self-defence does not justify the wilful infliction of hurt or injury that is excessive, having regard to the nature of the original assault. 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. [8]
(Consider whether to review relevant evidence here.)
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:
If it has, the defence of self-defence (under s. 37) fails. If not, then consider the next question.
If it has, the defence of self-defence (under s. 37) 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 either 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 the other of them is “yes”, the defence of self-defence (under s. 37) 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 both 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] 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.
[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 (and/or someone under (NOA)’s protection) was assaulted by (NOC) – even if (NOA)’s belief was actually mistaken.
[7] Some older cases have tended to limit the class of persons who can be protected to a group that includes spouse, parents, children, and masters and servants (but not siblings). However, the Ontario Court of Appeal in R. v. Webers, [1994] O.J. No. 2767 said the term is not limited to a formal guardianship relationship, but that “in its broadest sense, it means anyone who requires protection which the accused may be able to provide.”
[8] 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 him/herself.