Well, I can say that we've had discussions around the inclusion of a list in a section like this that is setting out self-defence. Proposed subsection 34(2) sets out a list of various factors that a judge is supposed to use in determining whether the defensive act was reasonable in the circumstances.
One of our concerns with including a list as it is in its current form is that this might signal to judges that they must consider each and every factor and apply it in every case. That would result in a subtle but important change in what the law is currently.
For example, proposed paragraph 34(2)(b) says: “the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force”. One might read that as requiring a judge to consider whether or not the person could have retreated, rather than acting out in self-defence, as they could. That would represent a change in what the law is now, because there is not a requirement on an individual to retreat from a threat in every case.
So the very limited amendment that we had suggested here was to just include a qualifier of “including but not limited to the following factors”. Our hope there was that this would signal to judges that they would only consider the factors in that list that had relevant application to the case at bar and that they weren't required to apply every single factor to the list. It's a small suggested amendment, but that's the rationale and that is the concern behind it.