Good morning. I'm here on behalf of the Criminal Lawyers' Association. We've been before you before.
We're a non-profit organization, founded on November 1, 1971. The association is comprised of approximately 1,000 criminal defence lawyers, many of whom practise in the province of Ontario, but we have representation from across Canada.
The association has been granted standing to participate in many significant criminal appellate cases as well as other judicial proceedings. We find it both a privilege and a pleasure to be given the opportunity to appear before this committee on this important bill.
I'll start by saying that this bill is very important to all Canadians, as it deals with the basic rights to defend oneself and one's property against unlawful attack. The Criminal Lawyers' Association believes that everyone, regardless of party affiliation or particular role in the justice system, be they crown prosecutors, defence lawyers, judges, or police, can agree that no one should attract criminal liability for legitimately defending oneself from aggression.
The position of the Criminal Lawyer's Association is that the goal of Bill C-26, in particular sections 34 and 35 involving the self-defence provisions, is laudable.
Countless courts, academics, and trial lawyers have commented with dismay at the needless complexity and confusion associated with the present self-defence provisions. Clearly this bill is attempting to respond to those criticisms. However, the bill as drafted is not without some difficulties, from our perspective. I will attempt to outline constructive criticisms while maintaining that the bill does respond to criticisms that have gone on for a number of years.
I have three essential points. Number one is the issue involving what I call “lethal force”. Paragraph 34(2)(b), as it currently stands, makes it clear that an innocent party who has not provoked an assault is justified in causing death or grievous bodily harm if he or she reasonably fears death or grievous bodily harm and reasonably believes that he or she cannot otherwise preserve him or herself from death or grievous bodily harm. The proposed amendments simply create a reasonableness standard, and I say there's not a great difficulty with that for many uses of force.
Proposed subsection 34(2) lists the nature of the force or the threat as one factor to be considered among a list of possible factors. Proposed subsection 34(2) also lists “other” means available as being a factor in such scenarios. That is suggestive potentially of bringing in notions of retreat or possible escape, especially when dealing with someone who is in their own home.
The Criminal Lawyers' Association recommends that there be a clear subsection clarifying that lethal force is proportionate where it is used to repel force or a threat of force capable of causing death and/or grievous bodily harm. We say this because we believe that without this clarification innocent parties will have their actions dissected in 20/20 hindsight, without appreciation of the stress of a self-defence scenario. For example, if you're in your own home, with your family asleep in their beds, and someone breaks into your dwelling and comes after you with a weapon, you should be able to defend yourself using lethal force if necessary. You should not have to explain why you didn't avail yourself of other potential avenues of escape.
Issue number two is the list in proposed subsection 34(2). The Criminal Lawyers' Association agrees with the Canadian Bar Association that proposed subsection 34(2) may result, unintentionally, in being used as a checklist, especially when a judge is applying these criteria. We acknowledge that the proposed subsection clearly says that these are some of the factors and the list is not exhaustive. We understand that.
That being said, the concern is in a practical matter, and the Criminal Lawyers' Association are able to give commentary as practical trial lawyers that, especially in a jury trial, the list of factors is what will be provided to a jury and what the jury will take with them into their deliberations. There is a concern that if another factor comes up that wasn't deemed important enough to list as one of the major factors to be taken into consideration, this may negatively impact the law of self-defence.
It's our submission that the list is simply not necessary, that it leaves out many potential relevant factors, and that all of the enumerated factors are simply examples of either proportionality or of necessity.
My third point is on section 34.(3).
The common law, as it currently stands, is that a person is justified in using force to repel an unlawful arrest. The amendment, as represented in the proposed section 34.(3), injects a subjective belief and creates a potential onus for a person who has resisted an unlawful arrest or an unlawful search to show that they subjectively and reasonably believed that the other person was acting unlawfully.
Again, we agree with the Canadian Bar Association that section 34.(3) is simply not necessary. It's very clear that self-defence is not applied to resisting a lawful arrest, that it's duplicitous and may, by accident, inject the need for an accused to prove his or her subjective belief when defending against unlawful arrest and/or search.