Justice committee  I believe it was Professor Stewart, and also Mr. Russomanno, who pointed out the proportionality question. My understanding of what they were concerned about was the replacing of the idea of proportionality with the idea of reasonableness as the last factor in self-defence. In other words, proposed paragraph 34(1)(c) of the bill says: the act committed is reasonable in the circumstances whereas under the current law, that last element is typically formulated as a notion of proportionality between the threat you are trying to avert and the harm that you actually cause.

Justice committee  In—

Justice committee  I think the drafting convention in English is to have the “and” between the last two items in a list, but not to have it in French. I think if you look in all the other areas of the bill, it is consistent—

Justice committee  The “and” is there in English, but it is not there in French. I couldn't explain to you why that is, but I do think that is a firm drafting convention.

Justice committee  I only want to say that the committee may wish to add other types of relationships, interactions, or knowledge that the parties have with each other, but I would urge the committee to be cautious about changing the language that's presently there, just because I think it was deliberately formulated to signal to the courts that they should continue to bear in mind this one particular situation.

Justice committee  My first suggestion would be that if it was something the committee wanted to do, it should be formulated as a new subparagraph and not attached to this one. This would keep this idea distinct and undiluted. The Canadian Bar Association mentioned situations in which there was no interaction between the parties, but one had knowledge of the other—for instance, one party knew of a reputation for violence.

Justice committee  Yes. I think I would agree with Mr. Goguen's comments. This particular factor was deliberately drafted to focus attention on.... It doesn't use the terminology “battered spouse” and so on and so forth, but the concept that emerges from jurisprudence in relation to those issues definitely speaks to the relationship between the parties.

Justice committee  I can try to clarify that. The first element of self-defence is the reasonable perception of the accused that there is a threat. The second element is the accused's subjective intention to act for a defensive purpose and not another purpose. Both of those requirements are certainly factors in the third requirement, along with all the other relevant factors, in determining whether, from the objective man's perspective, the act of the accused, who reasonably and subjectively perceived a threat and acted solely for a defensive purpose, was reasonable.

Justice committee  I can respond with my own words from Tuesday. This is not quite the same as what I was suggesting that the current approach is. If I look at the English version of what you've proposed, the act that is committed has to be found to be reasonable. If we say, “From the circumstances as perceived by the accused,” and we don't say, “the reasonable perceptions of the accused,” we are permitting the analysis of the reasonableness of the actions to be framed according to the purely subjective and potentially unreasonable viewpoint of the accused.

Justice committee  Where the words “the act that constitutes the offence” are employed, I think what the drafters were getting at was that it's the act that forms the subject matter of the charge.

Justice committee  Right. I'm sure that's the way the courts will understand it. I don't really see how a Canadian who picks up the law and reads it would be confused by what he's permitted to do or not permitted to do. The same goes for police officers applying this legislation to a particular situation.

Justice committee  No.

Justice committee  You're acquitted on the basis of a defence that exonerates you from an offence you have committed.

Justice committee  I can just add that one way to look at it is to keep in mind that the way defences operate is that you can only claim a defence if, in fact, you are found to have committed an offence. You don't need to claim self-defence if, for instance, you didn't have the mens rea to commit the assault.

Justice committee  Right, but you have committed an assault.