Justice committee  If you could be a little more specific, that would help me.

Justice committee  Yes.

Justice committee  There certainly are cases in which the violent past of an attacker can be admitted in trial if that makes it more likely than not that a person's perception that he was about to be attacked was reasonable in the circumstances. The admissibility of that type of evidence depends a little bit on the nature of the case and on how relevant that information would be to supporting the claims of the accused.

Justice committee  You've hit on one of the most interesting and difficult aspects of self-defence, which is the degree to which the personal characteristics of the accused can be attributed to the reasonable person when we're looking at the reasonableness of the accused's actions. Many of the accused's personal characteristics can be attributed to the reasonable person, but there's a limit.

Justice committee  If you open up a dictionary and look at the definition of proportionality, it really speaks to a direct and limited relationship between two separate things. This is where these two things are proportional to each other. It doesn't allow for plus or minus five degrees or ten degrees.

Justice committee  I don't think we would really be in a position to say what the outcome of the case would have been.

Justice committee  It would depend on the evidence that was available to be admitted during the trial. But certainly if one were to apply what's proposed to be the new law of self-defence here, the first question would be, did he have a reasonable perception that he was about to be attacked? That would be the first question.

Justice committee  That's a good question. I don't think there's very much of a difference between those concepts. In fact I think much of the jurisprudence that deals with citizen's arrest when it comes to the core issues of “finds committing” and the nature of the offences and so on...the jurisprudence that deals with arrest by peace officers is looked to when a court is dealing with an arrest by a citizen.

Justice committee  Yes.

Justice committee  That’s also an interesting idea. Section 494 may pose a problem in that regard. It states the following: “may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.” Let's apply that, for instance, to a situation where a wallet is stolen downtown.

Justice committee  Let’s take into consideration the three elements of self-defence. The first element requires the person to believe, on reasonable grounds, that they are under threat and that force must be used. That is both an objective and a subjective element. The subjective aspect—what the person thinks—is considered first.

Justice committee  I don’t think that’s the case for the three elements that define self-defence. As for the factors the court can consider, they are defined objectively. However, when deciding what is reasonable in the circumstances, the court or jury may take into account the person’s subjective thoughts.

Justice committee  Thank you for the opportunity to provide some additional information on just a few specific issues that were raised during the testimony of witnesses you heard over the last few weeks. In relation to the use of technology and the citizen's arrest power, questions have been asked about whether the concept of “finds committing” can apply where technology, such as a closed-circuit TV camera, is used in observing the crime.

Justice committee  That's a very valid point. It's a neat little problem to solve from a legislative drafting perspective. It seems to be that oftentimes in the code we do use the language of “the act that constitutes the offence”, even in circumstances where ultimately it's not an offence for which a person is going to be criminally responsible.

Justice committee  Right. I can add a little more detail. You're exactly right that section 38, one of the defences for protection of movable property, doesn't allow very much force to be used to defend that possession. But section 39 is another defence that exists for a person to use to defend their possession of movable property.