12. Availability of Self-Defence for Offences Other Than Homicide

Another law reform question not considered by the Justice consultation document in any depth is the question of which offences the defence of self-defence can be invoked for. Currently, only s. 34(1) and s. 37 contemplate a defence of self-defence for someone who acts to prevent a harm that is less than grievous bodily harm or death. Furthermore, these are the only self-defence sections open to someone whose act results in a harm to the aggressor that is less than grievous bodily harm or death. Both of these sections present the narrowest versions of self-defence. For example, in Eyapaise (1993), the accused was denied a s. 37 defence when she stabbed a man who touched her sexually several times and was undeterred by her clear resistance because the trial judge did not accept that she believed, on reasonable grounds, that she could not have otherwise preserved herself from harm .

CAEFS believes that self-defence ought to be available for accused charged with offences that involve less violence by the accused than killing or causing serious bodily harm, and ought also to be available to prevent crimes that are "lesser" than causing death or grievous bodily harm. Such a reform should, in particular, ensure that self-defence is available to defend against sexual assault. This reform would be consistent with the understanding that every woman who has been raped has looked death in the face. It would also reinforce the Supreme Court’s interpretation in McCraw (1991), where it was held that a threat to rape constitutes a threat to cause serious bodily harm.

Judge Ratushny’s recommendations for the Self-Defence Review similarly use "assault" or threatened "assault" as the basis for self-defence, without requiring that the assault involve serious bodily harm or death. CAEFS supports this recommendation by Judge Ratushny.

13. Imminence of the Threat

Nothing in the consultation paper addresses the issue of how imminent or temporally close the threatened violence must be before the accused can lawfully undertake defensive actions involving violence. While it is true that the Supreme Court in Lavallee (1990) and Pétel (1994) has left this an open-ended question and that there are therefore no strict legal limitations, it is suggested that the language in the Criminal Code that gives the right of self-defence to those “unlawfully assaulted” may be read narrowly by judges and by jurors to require that an assault actually be in progress before resort to self-defence can be justified. Such a narrow interpretation of the legal language may also be supported by commonly-held beliefs about women who kill, thereby denying self-defence to those who kill sleeping or “passed-out” victims.

While the imminence and nature of the assault anticipated by a battered woman may be evaluated as part of the objective test for self-defence (as is recommended by Judge Ratushny and discussed below), this is no guarantee that a jury will take an open-ended approach to this issue. For example, the model section in the Self-Defence Review (SDR) simply directs the trier of fact to consider, in terms of reasonableness, "the nature and imminence of the assault". CAEFS is of the view that the defence ought to be available where the anticipated danger is unavoidable, in the sense that the accused cannot, by other means, guarantee safety and where the defensive violence is therefore immediately necessary.