E. Reform Self-Defence

The discussion in the consultation document creating the basis for reform of self-defence is weak. Justice frames the reform issues solely in terms of reducing complexity and rendering the law more consistent and clear. While those are concerns that reforms can respond to, if they are the sole concerns, then public consultation is really not needed as the changes are simply "technical".

Unfortunately, there is no discussion of whether inequality or unfairness is perpetrated by the law of self-defence or its implementation. No reference is made to feminist concerns expressed repeatedly in other publications about whether the defence of self-defence is practically available to battered women and particularly to racialized, criminalized, and lesbian women.

In fact, Judge Ratushny’s Self-Defence Review confirmed a worrisome trend noted earlier by other researchers (Sheehy, 1994, 1995; Shaffer, 1997), namely, that battered women with apparent grounds for self-defence overwhelmingly plead guilty to manslaughter rather than go to trial on self-defence. This trend is suggestive of significant hurdles in self-defence doctrine for battered women, perceived bias in the trial process, and/or other structural or social inequalities that push such women to plead guilty rather than go to trial. Without specific attention to such inequities, Justice is at risk of reinforcing inequalities through these reforms and of creating further or new inequalities.


Recommendation #10: Identify the promotion of equality and justice and the reduction of inequality as experienced on the basis of sex, race, disability, and/or sexual orientation as the impetus for reforming all criminal law, including the defence of self-defence and provocation. In particular, the criminal law must ensure that everyone has the same duty of self-control, and must strive to accord to all, on an equal basis, the rights to self-worth and to self-preservation.

The defence of self-defence in its current version in the Criminal Code reads as follows:

S. 34 (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force used is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
  (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
  (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
    (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

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