A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions

The new sections 34 and 35 of the Criminal Code replace and simplify the old sections 34–42 of the Criminal Code. The critical but illusive issue under the new self-defence and defence of property provisions will be whether acts are “reasonable in the circumstances.” The new section 34(2) instructs the trier of fact to consider nine enumerated but non-exhaustive factors, while the new section 35 provides no legislative guidance in determining what may be reasonable in defending property. The new defences are less structured than the common law defences of necessity and duress, which clearly require proportionality between the harm inflicted and the harm avoided and that there be no legal alternative to breaking the law. This approach blurs the distinction between justifications and excuses. It recognizes that self-defence in some circumstances may operate more as a concession to human weakness than a justification that always requires that the force used be proportionate and necessary. The new defence of property provision does not mention proportionality and may depart from established jurisprudence by opening up the disturbing possibility that intentional killing in the defence of property could result in an acquittal.