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The Defence of Self-Defence

If you have been charged with a violent offence, such as assault, assault with a weapon, aggravated assault or even murder, the defence of self-defence may be available to you.

New self-defence provisions came into force in March 2013. The relevant section of the Criminal Code reads:

(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

In some cases, the new self-defence provisions are more generous and in other cases they are more restrictive. The more generous elements of the new provisions include: the conversion of mandatory prerequisites into discretionary considerations, which means more claims will be put before juries; the allowance of defence of other persons not necessarily "under [the accused's] protection", as required under the former s. 37; the elimination of a strict limitation on when fatal defensive force can be used, which previously required an apprehension of death or grievous bodily harm; and the expansion of acts of self-defence from "use of force" to any "act" (e.g. stealing a car or breaking into a house).

There are also less generous elements of the new provisions. Most significantly, they require that certain "pro-conviction" factors be considered in every claim of self-defence, such as whether other means of response were available to the accused, the nature and proportionality of the accused's response, and the accused's role in the incident (i.e. provocation). Such considerations were not always relevant under the old regime. For instance, the former s. 34(2) had no proportionality requirement and arguably justified excessive force if the accused was under a reasonable apprehension of death. The former provisions also did not require consideration of alternative means of response, which made it possible for self-defence to be based on "stand your ground" righteousness.

The law is relatively new so it remains to be seen how it will be interpreted by the courts.

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