A couple of weeks ago, we posted a blog explaining how the newly assented Bill C-26 changes what constitutes a citizen’s arrest. Today, we’re also going to focus on Bill C-26, but we’ll be looking at clause 2 of the bill which makes changes to the defence of self-defence.
When someone is officially charged with a crime they become known as “the Accused”. Sometimes, the Accused pleads “not guilty” to the charge because, although s/he committed the action question, s/he believes s/he has a legally valid reason for having done so. One such possible legally valid reason is “self-defence.”  An example:  a man walking in park thinks he is about to be mugged, the would-be victim fights and seriously wounds the would-be robber. Although the one did in fact hurt the other, thereby arguably committing “assault”, the victim could argue that he was just acting in self-defence and therefore should not be convicted of any crime.
Prior to Bill C-26, the Criminal Code definition of self-defence had been described by police, prosecutors and the courts as confusing and overly complex. Self-defence spanned four sections of the Criminal Code (sections 34 to 37). The criticism for this lack of consolidation made it to the Supreme Court where, in R v McIntosh, Chief Justice Lamer condemned sections 34 and 35 for overlapping and being inconsistent.
Prior to Bill C-26, whenever self-defence was argued, the court had to figure out which of the four sections the case fit under. For example, it could have been a case of an unprovoked attack that fit under section 34(1). Or perhaps the person arguing self-defence applied grievous bodily harm (either intentional or non-intentional), thus shifting it to section 34(2). Or maybe it was an incident of provoked assault that fell under section 35. It could have even been a section 37 case of self defence of another person (ie: not only defence of the self, but defence of another). The procedure of figuring out which section each individual case fit under was cumbersome and confusing. Parliament decided that the defence of self-defence needed a consolidated definition and passed Bill C-26.
Bill C-26 endeavours to simplify self-defence and make it easier to understand. It eliminates sections 34 to 37 of the Criminal Code and replaces them with a single “self-defence” section – the new section 34. Under the new section 34 the court no longer has to distinguish between provoked and unprovoked attacks, or look at whether the person claiming self-defence applied grievous bodily harm, because all references to those terms have been removed.
The new section 34 maintains that a person will not be guilty of an offence if they defend themselves in a situation where they reasonably believe that force or a threat of force is being used against them. The actions they use to defend themselves must also be reasonable. Self defence of another person is also included under the new section 34.
Today, if an accused argues self-defence the court will look at the entire circumstances of the incident to determine whether the actions used by the accused were reasonable. It may look at things like whether it was imminent that force was going to be used against the accused, whether the two parties involved had a history, or the size, age, gender and physical capacities of the parties. As is often the case, there is no definitive definition of what is reasonable, so this list (and the larger list outlined in the new section 34) is not exhaustive.
The result of Bill C-26 is a definition of self-defence that should be easier for everyone to understand. But like many law related issues, things are seldom cut and dry, and the reasonableness of each individual case is what will ultimately decide if it’s a case of self-defence.
Let us return to our example. Under the old law, a court would have had to first determine what section to apply. Was it provoked – so s.34(1) or 35?  Was the bodily harm grievous enough to fit into 2.34(2)? Or not? What if it fits under more than one category? What is we choose the category?  What if we get results in different categories? Under the new law, we don’t need to worry and argue about all of that, we would just need to look at what happened and whether the person’s actions were reasonable in the circumstances.
To learn more about how Bill C-26 attempts to make sense of self-defence, see the legislative summary  of Bill C-26, and scroll down to clause 2.