[5] On March 11, 2013, the Citizen’s Arrest and Self-Defence Act, S.C. 2012, c. 9, came into force, repealing the former ss. 34 to 37 of the Criminal Code and replacing them with a new s. 34 self-defence provision. At trial, the parties did not have the benefit of this court’s decision in R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, in which this court held that the new Criminal Code provisions regarding self-defence do not apply retrospectively. However, the parties submit, and I agree, there is no relevant difference, for the purposes of this case, between the old provisions and the new.
[6] At para. 28 of Bengy, Hourigan J.A. set out the elements of self-defence:
The test for self-defence was, therefore, simplified into three basic requirements, applicable to all cases:
Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;
Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and
Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances.
[7] As for the objective element of the defence, it is accepted that in considering the reasonableness of the defendant’s use of defensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection, as this court noted in R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para. 29:
As Professor Paciocco notes at p. 36:
The law's readiness to justify "mistaken self-defence" recognizes that those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made.
In a similar vein, Martin J.A. commented in R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96, at p. 111, that
in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action.
[8] It is well established that self-defence can be invoked on the basis of reasonable mistakes of fact, including whether the putative assailant was armed. As this court noted in R. v. Currie 2002 CanLII 44973 (ON CA), [2002] O.J. No. 2101, 166 C.C.C. (3d) 190 (C.A.), at para. 43:
The Supreme Court of Canada in Cinous [2002 SCC 29] confirmed the principle established in R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3 that the existence of an actual assault is not a prerequisite for a defence under s. 34(2). The question that the jury must ask itself is not whether the accused was unlawfully attacked, but whether he reasonably believed in the circumstances that he was being unlawfully attacked. The question for the trial judge on the threshold evidential test is whether there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked and that this belief was reasonable in the circumstances.
[9] It is also the law that a person who is defending himself, and other occupants of his house, is not obliged to retreat in the face of danger. In R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, this court considered the issue of retreat at some length, and concluded at para. 55: “a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence.”
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