2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11

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  Main criticism: too complex/confusing
  
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  Primary means of differentiating them = what type of harm? Death, BGH, or less?
  

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  s. 34.(2) applies when accused reasonably apprehended death/GBH (i.e. serious)
  
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  s. 34(1) applies where anything less (i.e. accused perceived less than death/GBH)
  
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  Facts: Typical bar fight, accused about to be hit in the face so he punches guy in self-defence, guy falls, hits head, dies. Can claim 34(1) b/c his intention wasn’t to kill or seriously injure the victim (even tho that was the result).
  

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  Harm to self only (not in defence of others) against an unprovoked assault
  
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  Focus is on the intention, not the result (i.e. even if someone died or was hurt)
  
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  Four elements:
  

1. 
   Unlawful assault (or reasonable but mistaken belief) that the individual is being or is about to be the subject of an unlawful assault;
   
2. 
   Not provoked;
   
3. 
   Force must not be intended to cause death/GBH (even if that is the result, as long as it wasn’t intended);
   
4. 
   Force used must be no more than is necessary.
   

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  Person who is under reasonable apprehension of death/bodily harm is justified in causing death or GBH as long as he believes he can’t preserve himself otherwise.
  
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  3 (possibly 4) elements:
  

1. 
   Unlawful assault (or reasonable but mistaken belief);
   
2. 
   Person must be under reasonable apprehension of death or GBH;
   
3. 
   Acc’d must believe on reasonable grounds he has no other choice.
   
4. 
   (Possible 4^th requirement) – when death is actually caused.
   

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  Each of the first three elements in ss. 34(2) had subjective/objective components
  
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  Must be an air of reality to all 3 of the core elements (here, met for 1/2 but not 3)
  
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  Facts: Acc’d suspicious that deceased and 3P intended to kill him. Suspicious victim had stole his revolver. 3 days later, they planned another crime together – he feared an attack on his life & shot him in the back of the head
  
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  Held: SCC accepted he may have honestly believed his life was in danger, but no evidence that his belief that he had no alternate course of action was reasonable
  
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  Thus no air of reality to the third element under s. 34(2) – 1^st yes (reasonably believed an unlawful assault), 2^nd yes (feared a deadly attack – but not 3^rd (no evidence that he believed he had no other way of preserving himself)
  
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  Must objectively be shown no other reasonable alternatives (not just his subjective testimony that he believed he couldn’t do anything else)
  
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  I.e. why didn’t he wait, flee, etc? Binnie – allowing SD here would be antithetical to public order
  
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  Courts haven’t been sympathetic to criminal organizations – but have been to inmates facing incidences of violence in prison settings (see R v McConnell – EXAM – also an excellent novel fact pattern! P. 973)
  
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  EXAM: Good set of facts to analogize to for applying the new law!
  

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  Compared “prison environment syndrome” as analogous to battered wife syndrome
  
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  Convict’s code cannot replace Canadian law – however, judge instructed the jury to consider the general prison environment - endorsed contextual approach
  
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  Imminence not req’d, as long as victim had “present ability” to carry out the threat
  

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  Where accused is initial aggressor
  
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  Long-held belief that ss. 34(1) and 34(2) were only available to innocent, but reading in McIntosh held words “without having provoked the assault” were only in s. 34(1) and should not be read into s. 34(2)
  
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  Basically rendered this provision useless
  

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  To protect oneself, or anyone under one’s protection from assault
  
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  Essential elements:
  

1. 
   Acc’d must reasonably believe self, or others, is subject to an unlawful assault;
   
2. 
   Force can be no more than is necessary to prevent assault (or its repetition);
   
3. 
   Wilful infliction of hurt/mischief cannot be excessive.
   

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  Imp. b/c allowed defence of others (not available in ss. 34/35)
  
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  Anyone “under one’s protection” been given very BROAD meaning (Webber – anyone who requires protection which acc’d may be able to provide – parent child, prison guard inmate, etc)
  
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  “Gap-filling” provision used for where ss. 34/35 can’t apply
  

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  Can’t justify excessive hurt/mischief
  

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  Is there any requirement to retreat before acting in SD?
  
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  This answer varied quite a bit under old laws
  
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  s. 35 – retreat as far as feasibly possible (but nothing in ss. 34/37)
  
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  Lavalee: Nobody has an obligation to flee from one’s home before relying on SD
  
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  Possibility of retreat might be a factor to be considered in whether acc’d reasonably believed he/she could not otherwise preserve him/herself – no obligation, but goes to reasonableness (Malott, Druken)
  
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  Cinous: That acc’d did NOT flee determined air of reality on 3^rd element not met
  
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  Thus: not imperative, but certainly relevant
  

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  Remember: the reasonable person is sober, so the objective assessment of reasonableness presumes without factor of intoxication
  
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  Doesn’t mean that your belief may not be reasonable simply b/c you are intoxicated, but something to remember
  
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  Thus, the accused’s intoxication is irrelevant in deciding whether is belief was reasonable
  
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  Reilly is the authority here
  

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  Unlike intoxication, it IS relevant
  
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  Nelson (Ont. CA): Court held diminished intelligence of acc’d should be considered
  
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  Lavallee: Acc’d said it would be unfair to measure her apprehension/belief against that of an ordinary person (since she was a battered spouse)
  
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  Kagan: Court held acc’ds Aspergers syndrome should have been considered
  

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  Thus: intoxication not relevant, mental impairment relevant.
  
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  What about new reality of co-occurring substance abuse and mental disorder?
  
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  This is the NEXT FRONTIER!
  

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  ss. 34(1) and 37 both say “no more force than is necessary” = proportionality req
  
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  Assessed objectively but with consideration to context
  
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  Consider force used by attacker to determine force required to repel that attack
  
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  Contextualized somewhat (relative strength of parties, options available)
  
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  But not purely subjective – must still determine what a reasonable person in the accused’s circumstances would have done
  

If there is a mistake at play (EXAM), objective standard will be based on accused’s mistaken perception of the circumstances – as long as they are reasonable (Kong)

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  ss. 34(2) and 35 – broader allowance to degree of force that could be used, less stringent than ss. 34(1) and 37 (Baxter)
  
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  If degree of force is excessive, accused will be criminally liable under s. 26 for that part of the force which is excessive
  
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  No partial defence here (like provocation) – if excessive force results in death, then accused who started out acting in SD may end up facing a murder charge
  
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  Depends on intent: unless killing was accompanied by intent in s. 212 (intent to kill or cause GBH likely to cause death) then it remains killing without intent, i.e. manslaughter – so s. 34(2) = murder if excessive force, and s. 34(1) manslaughter?
  

b) The act that constitutes the offence (not assault – broadens the scope) is committed for that purpose (i.e. of defending self or other - subjective);

1. 
   New law is a unified provision – includes both SD & defence of others
   

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  No more confusing distinctions between which provision, provoked or unprovoked, intend to cause death/BGH, etc
  
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  A single standard of reasonableness governs all cases
  

2. 
   New law is expanded
   

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  Before, had to be threat of some kind of assault – now, just “offence”
  
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  Could apply to things other than assault – B&E, mischief, theft, etc
  

3. 
   No more reference to justification (supports broadening of the defence?)
   

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  Law seems to be taking a more contextual approach
  
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  Question remains: what would happen in a situation of co-occurrence?
  

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  34(1)(a): Belief on reasonable grounds that force/threat of force is being used
  

1. 
   Subjective/objective assessment brought in from the old law
   
2. 
   Accused must have had a belief which is reasonable - accused's subjective belief, measuring it against an objective standard
   
3. 
   Looking to the old subjective/objective assessments under old law
   
4. 
   So what do we expect will happen in relation to things like retreat, intoxication, mental impairment? We believe the old law will be applied.
   

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  34(1)(b): A subjective purpose for defending one's self or others
  

1. 
   Adds a new requirement - that the accused committed this act for this purpose
   
2. 
   Defence of force cannot be available for what is actually a guise for revenge. Any other purpose falls outside the bounds of defensive action, and the person stands to be convicted for it
   
3. 
   This was likely an unstated assumption under the old law. Not controversial. Was really there already.
   

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  34(1)(c): Reasonable in the circumstances
  

1. 
   Gone is the "no more than is necessary" proportionality requirement - but, in our assessment of what is reasonable in the circumstances, we must look at 34(2) factors, which include proportionality, amongst others
   

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  NB: a) looks mixed objective/subjective, b) looks subjective and c) looks objective. But in an exam, just remember that we don't know how these will actually be applied - so we would say, arguably this is the test, etc
  
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  Contextualization allows objective standard to reflect acc’ds circs and history
  
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  This defence now open to “defence of others” (not just limited to someone under the accused’s “protection”) – now could apply to unrelated 3Ps
  
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  New provision still doesn’t recognize a partial defence for an accused who engages in excessive/unreasonable self-defence
  
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  Summary: New laws less structured/predictable than old provisions, but still retains basic elements (subjectively perceive a threat, respond for the purpose of defending self/others, must be reasonable basis for this response)
  
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  Trend towards a more contextual application
  

2. 
   34(2): Reasonableness is the theme
   
   1. 
      Lots of unstructured discretion here. Clearly informed by the old law, but much more discretion than old law
      
   2. 
      (b): other means available - i.e. was retreat available?
      
   3. 
      (e): size, age, gender
      
   4. 
      (f): history of relationship - inspired by Lavallee
      
   5. 
      (g): proportionality requirement - complemented by (a) - the nature of force/threat, imminency in (b)
      
   6. 
      However, proportionality will not be applied the way it was under the old law. It will simply be one factor.
      
   7. 
      You are still liable for use of excessive force
      
3. 
   Evans (2015, BCCA): Good application of this new law
   
4. 
   Williams (2013, BCSC): Important for the transition phase
   
5. 
   Remember - these are lower court decisions. No general statement yet about how the old and the new will work together. This is frontier territory.
   

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  If historically intoxication hasn’t been relevant, but mental impairment has, what happens if they are both at play?
  
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  If we are prepared to give some understanding to the psychology of inmates, people in long abusive relationships, then what about the drug addicts on the streets? A person struggling with psychosis and using drugs to moderate? How do we use "reasonableness" to be properly sympathetic to their life and their reality? Do we use the objective sober person test, or something else?
  
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  Last year's exam - fact pattern for self-defence - the accused had PTSD