The new provisions
The new self-defence provisions do not apply retrospectively to offences that predated their coming into force: R v Bengy, 2015 ONCA 397
For guiding principles on a functional approach to a jury charge on self-defence (i.e., how to narrow and focus the instruction) see R v. Rogers, 2015 ONCA 399
The requirement of an assault
The requirement of an “unlawful assault” by the victim is satisfied if there was an actual unlawful assault, or the accused reasonably believed that he was being unlawfully assaulted: R v. Batson, 2015 ONCA 593 (A case involving the application of self defence provisions (s.34(2) an s.35) where the accused pulled a gun on the victim first).
Where the claim of self-defence rests on an assertion of actual assault, and a distinction between what an accused said happened and what she reasonably believed happened or was about to happen cannot be fairly said to arise from the evidence, a trial judge is under no obligation to instruct the jury on the basis of apprehended assault: R v Sinclar, 2017 ONCA 38 at para 58
Self Defence in conjunction with other defences
The trial judge can put two incompatible defences to the jury, as long as each meets the air of reality test: R v. Woodcock, 2015 ONCA 535
The defence of self-defence can co-exist with the defence of accident in a similar fact scenario: R v Budhoo, 2015 ONCA 912
The Baxter instruction relates to the reasonableness of an accused’s belief of the necessity of killing or very seriously injuring a victim as the only means of self-preservation under former s. 34(2)(b).
The instruction advises that, in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34 (1) and (2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action.
In some cases, it is an error in law to omit the instruction: This will depend on such factors as: the absence of a request for the instruction or an objection to its omission; the thoroughness of the judge’s review of the relevant evidence; the emphasis laid on the subjective component of the excessive force element in former s. 34(2)(b): R v Sinclar, 2017 ONCA 38 at paras 112-119