| Recommendation
#19: |
Require that the
reasonableness of the accused’s belief regarding the need to use force and
the degree of violence that is needed be assessed from the standpoint of the
ordinary, sober person. |
10. Marked Departure
Requirement
Justice’s consultation paper also asks whether it should
adopt another aspect of the model used by Judge Ratushny for the Self-Defence
Review. In the SDR, she determined, consistent with case law pursuant to the
Charter, that an accused should not fail the “reasonableness” test
simply because her judgment that an assault was occurring was not
“reasonable” or because her determination that a certain degree of
force was required was unreasonable. Judge Ratushny instead said that the woman
must have deviated markedly from the standard of the reasonable person for the
error to constitute a criminal offence as serious as murder.
CAEFS agrees with Judge Ratushny’s definition in the SDR of
“reasonable”, which used a fairly high standard of unreasonable
behaviour as the bright line for criminalization. The accused’s perception
with respect to the degree of the danger or force needed to repel it should
only become unreasonable at law if it constituted a gross deviation from what a
reasonable person would have thought or done in the same circumstances. This
means that a fairly generous standard is being proposed for an accused, but it
is supportable both in terms of the Charter and in terms of giving
appropriate leeway to a person in a dire emergency to misjudge the degree of
danger or force needed, without losing the defence, as long as that misjudgment
is not excessive. CAEFS believes that the “gross deviation” standard
must also be interpreted in a manner consistent with s. 15 of the
Charter. For instance, a gross deviation would be established if the
accused relied upon racist stereotypes of the deceased as his basis for
self-defence.
| Recommendation
#20: |
Draft a self-defence law that
disqualifies an accused’s belief in the need to invoke defensive violence
or the degree of force used as unreasonable only where it constitutes a marked
departure from the beliefs or force used by the reasonable person, consistent
with s. 15 of the Charter. |
11. Excessive Force
Limitation
The Justice consultation document does not discuss the law
reform potential with respect to the current cut-off of “excessive
force” for self-defence that the courts have imposed. Instead, Justice
states that this doctrine would remain in place (Department of Justice, 1998 at
28). In several Supreme Court of Canada decisions, it has been held that if the
force used in self-defence is “excessive” because it exceeds what was
reasonable in the circumstances, then the defence fails absolutely and the
accused must be convicted of murder (Gee, 1982; Faid, 1983).
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