PROPORTIONALITY IS NOT REQUIRED
R. v. Reilly (1984) SCC
The SCC affirmed that CC34.2 requires a reasonable apprehension of death or g.b.h. (actual belief) and a reasonable belief that killing or causing g.b.h. (that belief must be reasonable) to one’s adversary was the only way to avoid harm.
1. Defense of a person to prevent an assault.
CC37.1 everyone is justified is using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or repetition of it.
CC37.2 this justification does not extend to excessive behavior. There are no requirements for reasonable apprehension of death or gb.h.
R. v. Whynot (1983) NSCA
Jane Stafford shot her sleeping common-law husband while he was passed out in his truck. He abused her and threatened on the night he was killed that he would kill her son if she tried to leave him. CC37 should not have gone to the jury in this case – “no person has a right in anticipation of an assault that may or may not happen to apply force to prevent the imaginary assault.”
R. v. Lavallee (1990) SCC
A battered woman killed her common-law husband late one night by shooting him in the back of the head as he left the room. This case overruled Whynot by indicating a judicial willingness to consider the accused’s situation and experiences for determining whether there was a reasonable basis for his or her beliefs. This does not meet that all battered women automatically get an acquittal for murdering their husbands. The new test is – given the history, circumstances and perception of the appellant, was her belief reasonable? (modified objective standard). Wilson J surveyed the history of domestic violence and dimissed Whynot as “completely unreasonable.” Wilson then looks at the theory on “battered woman syndrome” but relies very heavily on the work of one author, which is viewed as a frailty in her judgment by critics (especially considering that the work of the particular author that Wilson relied on is particularly suspect). A woman doesn’t forfeit her right to self-defense by remaining in an abusive relationship – a home is a woman’s castle too. In Nelson, the Ont. CA held that an accused’s diminished intelligence should also be taken into account in determining whether self-defense under CC34.2 is available.
R. v. Malott (1998) SCC
The accused was charged with murdering her common-law husband of twenty years. He abused her. She shot him. Then she took a cab to his girlfriend’s place and stabbed and shot her. She was charged with second degree murder of her husband and attempted murder of his girlfriend, the latter having no air of reality for self-defense. This case affirmed the need to consider battered woman syndrome.
4. Self-defense by an aggressor.
CC35 CC35 attempts to restrict self-defense for those accused who, without justification, assault another or provoke an assault by words, blows or gestures. CC35 is very complex and rigid. This contradicts the view that a preemptive strike might sometimes be justified and there should never be an absolute duty to retreat. The aggressor must have declined further conflict and quit or retreated from it as far as it was possible and formed no intent to cause death or g.b.h. before the necessity of self-preservation arose for this defense to apply.
Note: Canada has not recognized a partial defense of excessive self-defense.
DEFENSE OF PROPERTY
This is based on the premise that one’s home is one’s castle. CC38-42 deals with the defense of property. Anyone in peaceable possession is to use no more force than necessary to preserve his property, be it real or personal. People have a lawful right to reclaim their property
How much force can one use?
In Baxter, Martin J commented that necessary force means that the harm sought to be prevented could not be prevented by less violent means and that violence cannot be disproportionate to the injury or harm that it is intended to prevent.
R. v. Taylor (1970) Y.T. Mag. Ct.
T was charged with using a firearm in a manner that was dangerous to the safety of other persons contrary to CC86.b. T’s house had repeatedly been broken into. He kept a rifle near his bed to protect against this routine occurrence. When T’s home was broken into again, he grabbed the gun and told the trespassers to leave. T’s force was characterized as excessive (more force than was necessary to eject the trespasser); however, the Court didn’t buy this argument, concluding that the test for evaluating the degree of force used must look at the mind of the accused at the time (modified objective test). There is no need to impose a strict proportionality test in cases of defense of property when it doesn’t apply to cases of self-defense. Question to be asked: Did the accused use more force than on reasonable grounds he believed to be necessary?
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