Note[1]
I will now instruct you on the issue of self-defence.[2]
1. (NOA) killed or caused grievous bodily harm to (NOC) 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) reasonably believed that s/he would be killed or suffer grievous bodily harm as a result of (NOC)’s assault; and
3. (NOA) reasonably believed that s/he could not otherwise preserve himself/herself from death or grievous bodily harm.
Unless the Crown has proved 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) (or, that (NOA) did not reasonably believe that (NOC) assaulted him/her)?
2. Has the Crown proved beyond a reasonable doubt that (NOA) did not reasonably believe that s/he would be killed or suffer grievous bodily harm as a result of (NOC)’s assault?
3. Has the Crown proved beyond a reasonable doubt that (NOA) did not reasonably believe that s/he could not otherwise preserve himself/herself from death or grievous bodily harm?
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(2))[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 three 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.[6]
If it has, the defence of self-defence (under s. 34(2)) fails.
The question is whether (NOC) assaulted (NOA) and, if s/he did, whether (NOA) killed (NOC) or caused him/her grievous bodily harm in repelling that assault.
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 force to (NOA), or threatened to apply force to (NOA).
In this context, it does not matter whether (NOA) provoked (NOC). It also does not matter whether (NOA) intended to kill (NOC) or to cause him/her grievous bodily harm.
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. 34(2)) fails.
Consider the evidence and ask yourselves whether (NOA) had reasonable grounds to believe that s/he would be killed or suffer grievous bodily harm. “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. You must consider the entire sequence of events to determine whether anything said or done by (NOC) could have given (NOA) reason to have such a belief. In particular, consider whether (NOA) reasonably believed that s/he would be killed or suffer grievous bodily harm from either the violence of (NOC)’s original assault or from the violence of (NOC)’s continued attack.
In considering this question, you must take into account what (NOA) perceived in the circumstances. The question is whether s/he reasonably feared for his/her life or safety. Even if s/he made an honest and reasonable mistake that s/he had been assaulted by (NOC), or s/he mistakenly believed that his/her life and safety were in danger, you must consider whether s/he actually had reasonable grounds for those beliefs.[9] In addition to considering this question from (NOA)’s perspective, you must also take into account whether those beliefs would be reasonable from the viewpoint of an ordinary person placed in the same circumstances.
To determine whether (NOA) had a reasonable apprehension of death or grievous bodily harm, consider the entire sequence of events, including (the history of the relationship between the parties and)[10] how immediate the danger was.
(Consider whether to review relevant evidence here.)
If it has, the defence of self-defence (under s. 34(2)) fails.
People are justified in causing death or grievous bodily harm to others in self-defence, but only if they reasonably believe they cannot otherwise protect themselves from death or grievous bodily harm.
You must take into account what (NOA) perceived in the circumstances. Consider all of the evidence, including anything said or done in the circumstances of this case, and ask yourselves whether it was reasonable for (NOA) to believe that s/he had no other means to preserve himself/herself from death or grievous bodily harm.
(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, then the defence of self-defence (under s. 34(2)) fails. If not, you must consider the next question.
If it has, the defence of self-defence (under s. 34(2)) fails. If not, then consider the final question.
If it has, then self-defence (under s. 34(2)) fails. If it has not, then 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(2)) 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 expert evidence of battered woman syndrome is adduced in support of self-defence, the Supreme Court of Canada has stipulated that the jury must be instructed to consider that evidence in four ways:
1) Why an abused woman might remain in an abusive relationship;
2) The nature and extent of the violence in the relationship;
3) The accused’s ability to perceive danger from her abuser;
4) Whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm.
See R. v. Malott, [1998] 1 S.C.R. 123, at para. 20-21.
[7] 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.
[8] R. v. Paice, [2005] 1 S.C.R. 339, para. 36 – 41 per Fish J. (concurring).
[9] See Reilly v. The Queen, [1984] 2 S.C.R. 396, at p. 404.
[10] Insert bracketed phrase where applicable.