We had some of the same concerns you have expressed with some of the language used in some of the factors, and we set those out on page 4 of our submission. You've touched upon one of them, proposed paragraph 34(2)(e), regarding the size, age, and gender of the parties. We were just concerned that language was problematic and kind of leaned in a particular direction. That's why we went with the physical capabilities of the parties. I'm sure others could come up with a better or more elegant suggestion. There needs to be something broader and more descriptive to say those are factors.
In some ways, that's a factor that's going to be apparent to everyone in the courtroom. If someone is six foot nine and hulking over the person who was defending themselves at five foot two, it's going to be evident to everyone in the jury box and to the judge that it was an issue in terms of the threat that was perceived and that kind of thing. So it's really just a codification of some of the observations that the trier of fact is going to make in a trial anyway.
I think in the list of factors under proposed paragraph 34(2)(f), there has been some effort to preserve the defence in particular in the context of women who are in abusive relationships. But again, rather than focusing on the relationship as the key factor, we had suggested focusing on their familiarity or their interactions or communication.
Ultimately I think the most important suggestion that the Canadian Bar Association is making, which has also been touched on by Ms. Pate, is the one at the top of page 3 of our submission. The subjective belief of the person who's defending themselves really does have to be taken into account, and the language in this act really needs to be clear about that. The concept we suggested by adding to proposed paragraph 34(1)(c) the “circumstances as perceived by the accused”, or as understood by the individual—however you choose to frame it—needs to be put across, and allowances need to be made for mistaken perceptions.
Some of the other language and factors need to be balanced out. Factors include such things as imminence or whether or not the person could have retreated and those kinds of things, which on the face of them might be used to defeat defences such as the battered woman syndrome example that we heard about and that we all know, from our familiarity with the courts and cases, is a real problem and is a real defence.