Can a person kill pre-emptively in self-defence?

19 June 2014

The Ontario Bar Association just published an article I wrote on a subject that I have been interested in for years: pre-emptive killings in self-defence. 

It is a difficult subject for Courts to confront as self-defence as it was written in the Criminal Code, prior to the recent amendments in 2013, were highly suggestive that the attack had to be imminent. However, that changed after the case of R v. Lavallee was heard by the Supreme Court of Canada in 1990.  During that era, there were a number of cases being heard in the United States and elsewhere where the defence of “battered woman’s syndrome” was used.  But battered woman’s syndrome was not a new defence, it was merely a component of a defence of self-defence where there was no threat of an imminent attack.  The battered woman’s syndrome defence was used as a way to explain to a jury why a woman would perceive a threat despite an attack not being imminent in the objective sense.  The Supreme Court in Lavallee ruled that this kind of evidence was very important for a jury to hear prior to passing judgment in a murder case.

As I argue in my article, the Lavallee case and the cases that followed were a positive step in the development of the law of self-defence.  There is no reason in principle why a pre-emptive attack cannot be legitimate self-defence. For a victim to confront a violent aggressor at the time and place of their choosing is both reasonable and understandable.

However, it seemed to me that before the new self-defence provisions, unsympathetic accuseds, in particular criminals, were prevented from advancing a self-defence argument in cases where they killed pre-emptively. 

My position is that these people should have had the opportunity to advance their self-defence claim to the jury.  

This does not mean that they would have or should have been acquitted, but simply that they should have had their day in court to testify about their state of mind.  In my view, that is a very small claim to make when the penalty upon conviction is automatic life imprisonment.  In the cases I mentioned, when the judge ruled that there was no merit to the defence of self-defence and prevented a jury from hearing the evidence, it was tantamount to an automatic life sentence.

I believe that under the new self-defence provisions, there is much less discretion for judges to deny an accused person the ability to put the defence of self-defence to the jury.  This is because the new section has removed the threshold requirements that had to do with imminence and created a list of nine factors that a jury is meant to use to determine if the actions of the accused were reasonable.  This is good news. It may be an unpopular position, but even an unsympathetic accused – even a criminal – has the right to have their day in court prior to being convicted as a murderer and sentenced to life in jail.

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