- James Gacek
Proposing Proportionality for the Self-Defence and Defence of Property Provisions in the Criminal Co
When Code provisions come under to scrutiny and become subject to or warrant change, the familiar debate between broad standards and more specific rules arises. While open-ended standards “maximize the ability of judges and juries to do justice on the basis of all the particular facts of the case” these standards, however, lack predictability than rules which set more precise parameters for when self-defence is required (Roach, 2011: 152).
The complexity of the prior provisions of self-defence and defence of property was notorious (Roach, 2011; for a review, see Roach, 2012). Fortunately, in 2012 sections 34-42 of the Criminal Code were replaced with a simplified version of self-defence and defence of property (new sections 34 and 35 of the Code, respectively). As Roach (2011: 151) argues, the old provisions were “an unnecessary landmine for judges and likely a source of bafflement for juries.” At the very least, the reform efforts should be (and were) warmly welcomed.
Notwithstanding, it is clear that these provisions still require careful evaluation to ensure that they reasonably relate to the existing and voluminous jurisprudence on self-defence and defence of property in Canada, and that they are based on sound values.
For instance, Section 34 indicates that self-defence claims have to be both subjectively held and have a reasonable basis in their circumstances. To hypothetically forgo the reasonable basis and establish a solely subjective approach “could encourage hot-headed resorts to self-defence and vigilantism” (Roach, 2011: 151). It also abandons the requirement in Section 37(1) of the Code that the defence of others should be limited to those under the accused’s protection, and collapses the once separate provisions for self-defence and defence of others. Additionally, Section 34(2) sets out a non-exhaustive laundry list of nine factors that may be considered in determining whether the act done in self-defence is reasonable in the circumstances. However, Roach is mindful that all of the factors in Section 34 are permissive factors, and the exact effect that they will have in cases has been and continues to be deliberately left open-ended in order to “maximize… the flexibility of triers of fact” in determining whether there exists a reasonable doubt that the accused acted in self-defence (Roach, 2011: 153).
Furthermore, there continues to be an issue which lies in the guts of Section 35(1)(c), which requires that actions done in self-defence must be ‘reasonable in the circumstances.’ This remains a critical and illusive issue to solve, as the newer provisions for self-defence and defence of property are less structured than the common law defences of necessity and duress, which clearly require proportionality between the harm inflicted and the harm avoided and that there be no other legal alternative to breaking the law. As Roach (2012: 275) indicates, the newer provisions blur the distinction between justifications and excuses, insofar as in some cases, self-defence may operate “more as a concession to human weakness than a justification that always requires that the force used be proportionate and necessary.”
Implementing open-ended standards limits our ability to predict the exact effect of this treatment of proportionality. Proportionality (and the potential for other reasonable alternatives) plays less of a role in deciding self-defence, and an even less role (if at all) in the defence of property provision (Roach, 2011, 2012). Proportionality is not even mentioned in Section 35, and s. 35(1)(d), like its counterpart in ss. 1(c), would simply require a finding that an act committed in defence of property be, again, “reasonable in the circumstances” and once more the question of ‘reasonableness’ arises within the law without a clear resolution. While Section 35(1)(b) would require a reasonable basis for a belief that one’s property was threatened, the only requirement is a subjective purpose of property protection as indicated in s. 35(1)(c).
Roach rightly argues that proportionality has played a significant role “in all the various permutations of the Canadian law of self-defence” (2011: 153).
While the courts have never insisted on exact forms of proportionality between force threatened and force used in the law of self-defence, or the (threat of) harm caused to property and the harm inflicted in defence of property, a requirement for some rough form of proportionality speaks to a certain caution about the use of self-defence which “befits a nation that has generally not encouraged or celebrated violent self-help” (Roach, 2011: 153; see also Roach, 2012: 297). The approach taken in Florida and an number of other American states of extending the so-called ‘Castle doctrine’ (of no retreat beyond your home; also referred to as ‘Stand Your Ground’ laws) is both drastic and ill-advised as it encourages unnecessary, violent self-help and initiates more problems then it solves (Roach, 2012: 280).
Much work remains in updating the Code. Indeed, in 1995 the Supreme Court stated that “legislative action is required to clarify the Criminal Code’s self-defence regime” and it took 17 years to achieve the legislative reform we received in 2012 (R. v. McIntosh, 1995: para. 18; Roach, 2012: 276). Although the reform of these convoluted and complex self-defence and defence of property provisions is to be warmly welcomed, it would be also tempting to conclude that any reform which simplifies the law is better than no reform at all.
Let us not fall into such a trap. Given the politically charged nature of the matter, an appropriate course of action is for the legislature to spell out self-defence and defence of property more clearly. As Roach asserts, “Do we really want to authorize people intentionally to kill to defend property, contrary to the Supreme Court’s… decision in R. v. Gunning,  1 S.C.R. 627? Do we really want to remove existing restraints in the admittedly incredible complex defence of property provisions that generally require the use of ‘no more force than necessary’ to protect property?” (2011: 154; see also Yeo, 2011 for a discussion in the context of home invasions).
We must continue to ask ourselves what we are prepared to sacrifice to maintain the age-old adage of “a person’s home is his or her castle” (c.f. Yeo, 2011: 157). We need to continue to have an open dialogue which wholly and critically addresses the jurisprudential choices at work and we must continually query how best to ensure sound values and proportionate requirements within future iterations and recodifications of our criminal law.
Roach, K. (2011) Reforming Self-Defence and Defence of Property: Choices to be Made. Criminal Law Quarterly 57: 151-154.
Roach, K. (2012) A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions. Canadian Criminal Law Review 16: 275-299.
Yeo, S. (2011) Killing a Home Invader. Criminal Law Quarterly 57: 181-196.
Criminal Code, R.S.C. 1985, c. C-46, s. 34.
Criminal Code, R.S.C. 1985, c. C-46, s. 35.
R v McIntosh (1995) 1 S.C.R. 686.