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- Title
Licence to Khill: What Appellate Decisions Reveal About Canada's New Self-Defence Law.
- Authors
Weisbord, Noah
- Abstract
This paper presents novel findings about how appellate courts interpret and apply Canada's revamped self-defence law, contained in section 34 of the Criminal Code. The author identifies how section 34, described by the Canadian Department of Justice as a simplification of existing self-defence legislation and jurisprudence, significantly expands the availability of self-defence while removing and demoting principled constraints on the use of defensive force. The author studies self-defence appeals since section 34 has come into force. This study reveals the interpretive architecture of the new law and indicates where appeal decisions regularly turn. The paper is organized into six parts. First, the author explains the methodology used to arrive at the list of section 34 appellate cases. Second, the author assesses the prevalence of self-defence elements within these appellate decisions. Third, the author explores how appellate courts interpreting section 34 have evaluated the accused's role in the incident. Fourth, the author assesses the scope of the modified objective approach and its evolution under section 34. Fifth, the author discusses how longstanding self-defence principles have been applied within the new framework. Lastly, the author discusses hybrid defences-the melding of self-defence and other defences-and their prevalence under the new law. The author concludes by suggesting that section 34 has not resolved the complexity it was meant to address. Rather, it replaced one type of complexity with another. Appellate courts are now struggling to determine if, where, and how received principles such as necessity, proportionality, and retreat fit into section 34. Appellate decisions reveal that the operation of section 34 remains unpredictable, and guidance from appellate courts, most importantly the Supreme Court of Canada, is necessary. R v Khill, scheduled to be heard by the Supreme Court of Canada in 2021, presents an important opportunity to clarify self-defence law in Canada.
- Subjects
CANADA; SELF-defense (Law); APPELLATE procedure; JURISPRUDENCE; PROPORTIONALITY in law; LAW
- Publication
Queen's Law Journal, 2020, Vol 46, Issue 1, p97
- ISSN
0316-778X
- Publication type
Article