All right, then. We'll just go in the order we were listed. I'll start.
The aspect of Bill C-26 I'm going to focus on is proposed section 34, the proposed amendments to the self-defence provisions. I'm focusing on this because this is the most significant proposed changed to the law of self-defence in Canada since the Criminal Code first came into force in 1892. This bill potentially has a very significant impact on the law of self-defence.
What I'd like to do first is say a few words about the role of self-defence, generally speaking, in the criminal law. Second, I'm going to outline what I think is the essence of a self-defence claim and the elements a self-defence claim should have. And finally, I'm going to say something about proposed section 34 in light of those first two points.
First, I'll make a few general comments about self-defence.
In a society that's governed by law and institutions, as Canada is, we generally rely on those institutions to protect our most basic interests. We rely on the police. We rely on the courts to settle disputes. We typically don't exert force ourselves to solve our problems, but there are times when it's not possible for the institutions to protect us. In an emergency situation, the problem arises suddenly, and it's not possible to call the police or it's not possible to wait for a court to decide the dispute. In those situations, criminal law recognizes that private individuals can do things that otherwise would be crimes—sometimes quite serious crimes. The law of self-defence, in particular, permits individuals to commit acts that would otherwise be assaults, or even murders, when it is not possible to obtain protection from wrongful threats through the usual method of calling the police or other means.
Provisions governing defence of property function in a similar way, but I'm going to focus mainly on defence of person--proposed section 34.
On the one hand, we hope that self-defence is exceptional, in the sense that we hope that most of the time individuals will be able to rely on the police and other institutions to protect them. On the other hand, when self-defence is required, it's there to protect our most basic interests and bodily integrity. I think the law of self-defence needs to take both of these aspects into account. It needs to take into account the need to protect everyone's most fundamental interests and to also recognize that this should not be the first resort but the last resort, in a way, for citizens who face wrongful threats.
I would suggest that in a successful self-defence claim, there should be three elements. When these three elements are present a self-defence claim should succeed, but when any one of them is lacking a self-defence claim should fail.
First, the person who is defending himself or herself--I'll just call that person the defender, for short--is faced with a wrongful application of force, or the threat of a wrongful application of force, to his or her person. So a wrongful threat is the first element.
The second element is that whatever force the defender uses in response—the defensive response—is necessary to repel the wrongful force or the threat of force.
Third, the force the defender uses is proportionate to the threat posed to him or her in the first place.
Typically, the law of self-defence requires the defender to have a reasonable belief that these three elements are present. They don't actually have to be present, but there should be at least a reasonable belief that they are.
Many criminal codes, many systems of criminal law, require if not these exact three elements, then something like them. The existing provisions of the Criminal Code—the existing subsection 34(2) of the Criminal Code--doesn't track them exactly, but it's often been interpreted to require something along these three elements of self-defence. In my written notes I give a few examples from other legal systems, and you can find something similar in English law.
I want to suggest to you that these three requirements make perfect sense. Take the first one, the requirement that there be a wrongful threat. If someone is faced with an application of force that's not wrongful, then the person should submit to that. They should not resist it. The clearest example of this would be a lawful arrest. You're not supposed to resist a lawful arrest. In fact, it's a separate offence to resist a lawful arrest, because the threat of force that you face is lawful. It's not wrongful.
Second is the requirement of necessity. If there's some way you can avert the threat without using force—particularly deadly force—against your attacker, then you should do that instead of committing what would otherwise be an offence.
Finally, if the response is disproportionate, then there's a sense in which the defender has gone too far in protecting his or her own interest and has upset the balance that the law of self-defence tries to create between everyone's interests in bodily integrity.
Now, if those are the three elements that a self-defence claim should have, how does proposed section 34 affect that? What would proposed section 34 do to the law of self-defence?
Well, the first thing I'd like to say about proposed section 34 is that in one respect it's extremely welcome. The existing provisions of the Criminal Code have often been criticized for being unclear, for overlapping in ways that are not always clear, and for being difficult to explain to juries. There has been a long stream of criticism from lawyers, judges, and academics about the difficulty of interpreting and applying the existing provisions. So the attempt to take all these ideas of self-defence and put them into one section that would be clear and that would apply to all potential crimes I think is very welcome.
Having said that, though, I'm concerned that proposed section 34 in its current form does not adequately reflect the principles governing self-defence that I have laid out. I'm concerned that there's a structural problem in the way the proposed section is set up.
The section does require “a threat of force”. It then says that the defence is available if the response is for the purpose of self-defence—that part is fine—and if the act is “reasonable in the circumstances”.
Proposed subsection 34(2) then goes on to list a number of factors that are relevant to assessing whether the response is reasonable in the circumstances. Now, my discomfort about this is not the list of factors as such; it's that the key elements of self-defence—namely, necessity and proportionality—have been placed in as mere factors to be considered, which means that they potentially could be outweighed by other factors.
In my view, the requirements of the wrongful threat, the necessity of the response, and the proportionality of the response should be the required elements of self-defence. The factors listed in proposed subsection 34(2) are relevant to those elements of self-defence. They shouldn't be allowed to outweigh them.
Since my time is running short, let me just give you one example that I'm particularly concerned about. Proposed paragraph 34(2)(h) says that one of the factors to be considered is “whether the act committed was in response to a use or threat of force that the person” defending himself or herself “knew was lawful”. This is listed as a factor to be considered.
In my view, this factor should always defeat a self-defence claim. If the defender is facing a threat of force that he or she knows to be lawful, then he or she ought to submit to that threat of force. It shouldn't be considered a factor that could potentially be outweighed by other factors, such as the size, age, and gender of the parties to the incident. That's an example, I think, of how self-defence under proposed section 34 could lead to an acquittal in a situation where it ought not to.
The reverse is also possible. Because necessity and proportionality are listed only as factors, it's conceivable under this proposed section that a person could use necessary and proportionate force to defend himself or herself against a wrongful threat and nonetheless be convicted because, in the eyes of the judge or the jury, some of these other factors might outweigh the necessity and the proportionality of the response. So a person might be convicted even though his or her conduct satisfies what I take to be the core elements of the self-defence claim.
My suggestion for proposed subsection 34(2) is not that these factors are irrelevant, but that they should be subordinated to the elements of self-defence claim: the wrongful threat, the necessity of the response, and the proportionality of the response.