Justice committee  I think that general point also applies to the self-defence provisions and defence of property provisions in a more general way. If it's possible to avoid a threat by calling the police to deal with it, then that's preferable to the citizen using force, particularly deadly force, to defend himself or herself.

Justice committee  All right. I haven't thought as much about the proposed section 494 as about the rest of the bill, but I'll try to give an answer. I think that in the bill as it stands, the requirement that a person be found committing an offence has been interpreted in others parts of the Criminal Code to mean there exists a reasonable belief that a person is committing the offence.

Justice committee  There's always a chance. I'd like to think of myself as not having completely settled views on any issue. Therefore, there's a chance. I endorse the first thing you said very much. I do find it difficult to imagine a set of facts where this factor could be the decisive one, given all the other things that might be in play in a case of self-defence.

Justice committee  Yes. To that extent, I think it's hard to imagine what role it's supposed to play. Of course that leads me to wonder why it's in there. I'm wondering whether this factor, the use of force by law enforcement, is clearly excluded by proposed subsection 34(3) of the bill, which clearly says that this self-defence provision doesn't apply if the person is responding to the authorized use of force by a law enforcement officer--

Justice committee  My sense at the moment is that there may be sufficient discretion within the concept of what is a necessary and proportionate response, because proportionality is not a precise concept either. Self-defence cases are replete with observations by judges to the effect that you can't be expected to weigh exactly how much force you need to use in response to a serious threat to your life or your person.

Justice committee  As I said before, and as Mr. Preston also said, in the law and particularly, I think, in the law of defences, we're never going to get away from the concepts of reasonableness and proportionality. We're never going to have a completely precise standard for deciding these things.

Justice committee  If I'm reading it correctly, I don't think the bill prevents the battered woman from raising the defence in that situation. It does, however, ask the fact-finder to consider whether the use of force was imminent, and whether there were other potential means, so that's going to be a factor to be considered along with the others.

Justice committee  That may be. Even if that is the right way to read it, there are two things to bear in mind. First of all, when there's a difference between the French and English text it raises a complex question of bilingual statutory interpretation and how the difference should be sorted out.

Justice committee  I will simply state that I agreed with Mr. Preston's remarks on the hypothetical example of shots being fired over a trespasser's head.

Justice committee  I'd like to be sure I understand your question. You're pointing to a difference between the French text and the English text of the bill, and suggesting that the French text is.... French, of course, is not my first language. I'm not immediately seeing the difference you're getting at.

Justice committee  “Especially these factors”....

Justice committee  I think you're right to say that it would be possible to interpret this clause as prioritizing necessity and proportionality over the other factors listed in proposed subsection 34.(2). I think the clause is open to that interpretation. I think it would give clearer guidance to trial judges and juries if it were made explicit rather than being left in a list of factors.

Justice committee  Oh, you want the example.

Justice committee  Imagine someone who is being pushed around, let's say, in a bar. So the defender's being pushed around by the attacker and the defender uses reasonable and proportionate force to push that person back and he gets charged with assault. The force was necessary and proportional, just pushing and shoving, so it's not really that big a deal.

Justice committee  I think this example would fall under the defence of property in proposed section 35 rather than self-defence in proposed section 34, but the issues are similar. The trespasser comes on your property, and that's a wrongful act. Section 35, under the current law, gives the property owner some power to repel a trespasser in that circumstance.