Bill C-26 (S.C. 2012 c. 9)
Reforms to Self-Defence and
Defence of Property:
Technical Guide for Practitioners

Introduction

Bill C-26, the Citizen's Arrest and Self-defence Act received Royal Assent on June 28, 2012 (2012 S.C. c. 9) and the measures contained therein come into force on March 11, 2013. The legislation replaces the existing Criminal Code provisions on self-defence and defence of property with new defences.Footnote 1

It is acknowledged that comprehensive law reform always creates a transitional period of uncertainty, in which arguments must be advanced in court as to the interpretation of the new laws and decisions must be made about how the new law applies to the facts of actual cases.

This guide describes the new laws of self-defence and defence of property in order to aid police and Crown prosecutors in their application of the law. Its objective is to ensure that across all Canadian jurisdictions, prosecutorial authorities and other criminal law practitioners have a common understanding of the legislative intent and content of the new law. The more those applying the new laws have a shared understanding of their purpose and effect, the more easily and quickly there will emerge a judicial interpretation of the new laws that reflects their legislative intent, which in turn will result in their common and effective application across the country.

This guide does not contain a comprehensive analysis of the laws of self-defence and defence of property, and as such does not contain a complete or exhaustive description of relevant jurisprudence and legal issues. This guide is intended to facilitate the transition from the old laws to the new laws, and its contents reflect this purpose. As such, this guide focuses on the key elements of the new defences and other aspects of the law which are now codified, and discusses jurisprudence and specific legal issues only to the degree that they are implicated directly (or indirectly) by the new legislation. Issues that are not affected by the change in legislation – e.g. the admissibility of the victim's reputation for violence and admissibility of expert evidence – are not addressed in this guide.

To facilitate the practical application of the new law, and in particular to facilitate the making of arguments in court as to its proper interpretation, this document will describe the legislative intent behind the new law and provide a general overview of changes, including excerpts from parliamentary consideration of the new measures.

It will also provide a more technical description of each section (including subsections and paragraphs) of the new defences, including:

  • Identification of aspects of the new laws that mirror the old laws and aspects that are changed
  • Where new laws differs from old laws, an explanation of the reasons for the change
  • Identification of principles from jurisprudence under the old laws that are incorporated into the new laws, including references to key decisions
  • Relevant excerpts from parliamentary consideration of the new laws

As the Supreme Court of Canada (SCC) has recognized, the defence of person and defence of property laws contain many of the same key concepts and elements, and accordingly, the interpretation and jurisprudence in relation to one defence can be relevant and authoritative for the other. As a result, cases that deal with both defences may be mentioned below in relation to each other.Footnote 2

Background

It is important to note that the core elements of the legislative reforms to self-defence were initially developed by a joint Federal/Provincial/Territorial (FPT) Working Group, whose recommendations were accepted by FPT Ministers responsible for Justice in 2009. Similarly, this guide was developed jointly between federal Department of Justice officials and officials from a number of provincial Ministries of the Attorneys General. As a result, both the new laws and the interpretations proposed in this guide reflect the common understanding of FPT Justice officials. Therefore, while this guide is not binding on prosecutors or other criminal law practitioners, the use and adoption of its contents is encouraged.

Additional information and assistance can be obtained from the Criminal Law Policy Section of the Department of Justice, Canada (for example, additional information in relation to parliamentary proceedings and relevant foreign jurisprudence and legislation may be available).

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