This amendment is to delete lines 14 to 16 on page 2, which essentially is proposed paragraph 34(2)(g).
I raise this because it has been raised by one of our witnesses who was concerned that including this wording here may take away from the notion that proportionality may detract from the previous provisions of the existing self-defence provisions, which are provided specifically for the use of lethal force in certain circumstances that were specified in the old act.
It was urged upon us that putting this here would potentially limit or remove the protection that was in the existing Criminal Code. I was persuaded by that argument enough to put this forward.
I do want to hear what the officials have to say about it, because we're talking about lethal force and very extreme circumstances, clearly, when someone has lost their life, and we wouldn't want the inclusion of this clause to remove a defence that already existed in the law.
I know it's a somewhat rare circumstance and I'm not suggesting that we want to do anything that would give licence to people to use extreme force in the wrong circumstances, but I do want to see addressed the concern—I forget exactly which witness raised it; I don't think it was the CBA—that the inclusion of this as a specific factor would detract from the previous section that dealt with the use of lethal force and the response to grievous bodily harm or the threat of grievous bodily harm or death. That's the reason for it.
I think that the nature of the response to the use of threat or force is obviously going to be considered in any event. Obviously, that has to be considered because we are looking at the reasonableness of the act that was committed. In every circumstance, especially when we've now included the words “shall consider that”, it seems this could cause problems for certain types of cases.