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François Lareau,  LL.M., 29 June 2025      
55-890 Cahill Drive West
Ottawa, Ontario, Canada,  K1V  9A4                                           
Tel.: 613-521-3689
flareau@rogers.com


François Lareau,  2018,
 Biography/Biographie




https://www.lawreform.ie/_fileupload/reports/rdefencesincriminallaw.pdf

Where, however, a defence is described as justificatory, such as
legitimate defence, it is extremely important that the precise ingredients of that
defence are clearly set out. While all defences, whether based on “justification”
or “excuse” should be clear in terms of their content and scope, it is crucial that
the nature and scope of a justification-based defence should be set out in the
clearest possible language
(p.5

Each of the defences concerns
16 See Chalmers Criminal Defences and Pleas in Bar of Trial (Thomson, 2006) at
Chapter 1.
17 See further McAuley & McCutcheon Criminal Liability (Roundhall Sweet &
Maxwell, 2000).
6
situations where a person acts in response to some external factor, whether the
actions or words of another person or the circumstances in which the person
finds themselves. In the case of legitimate defence, defendants act in response
to unlawful force by another person in order to protect themselves, or someone
else (such as a family member) or their home.
(pp. 5-6)

However, if legislators expect citizens to acquaint themselves with
the contours of criminal law they have a duty to make laws clear and consistent.
The law on defences, as already noted, has been marred by inconsistency and
a lack of clear guidelines. In that respect, the Commission has approached this
Report with a view to providing an increased level of clarity and coherence
(p. 17)

 Legitimate use of force represents a balance between the needs of
an ordered society and the right of individuals to ensure their own protection.3
By providing for this, the criminal law respects the autonomy of the individual.4
p. 26

******2.09 As already indicated above where, as in The People (Attorney
General) v Dwyer,6 disproportionate or excessive force was used because the
accused is mistaken in his or her perception of the threat or the use of force he
or she faced, the law cannot justify this, but may take the view that while the
killing is unlawful the force used can, in part, be excused, resulting in a
conviction for manslaughter rather than murder.
p. 27

****The proposed codification process is important for another reason.
The 2004 Report of the Expert Group on Codification of the Criminal Law17
stated that general principles of criminal liability need to be defined in a manner
which is compatible with the principal of legality and “citizens are entitled to
clear notice as to what the law expects of them and to be given a fair
opportunity to act in conformity with its provisions”. This is especially important
for justificatory defences. The lawful use of force should be clearly defined so
that citizens are aware what they may and may not lawfully do. In the words of
Ashworth, “legal certainty is important from the point of view of producing
consistent and principled court decisions, as well as guiding the conduct of
citizens p. 31

*****In general, the current test for the use of legitimate force has been
based on „reasonableness‟. The general direction for juries has been based on
a question of whether the „response‟ by the defendant was reasonable. In the
Consultation Paper, the Commission was of the opinion that although this
approach has its merits, in terms of being a term easily understood, it is too
vague and unstructured. The Commission took the view that the substantive
requirements traditionally embedded in the defence, namely a minimum
threshold requirement, imminence, necessity and proportionality must be
incorporated into the law on legitimate defence. In the Commission‟s view,
these would help to achieve certainty in this area. IMPORTANT p. 31


Placing these requirements on a specific legislative footing will help
guide the courts and ultimately juries; it is the opinion of the Commission that
juries should be provided with direction with regard to these elements rather
than simply being asked to base their decision on a test of reasonableness. By
introducing a more structured test to the defence of legitimate defence and in
particular to the defence of the person, rather than the generalised
17 Codifying the Criminal Law, Report of the Expert Group on the Codification of the
Criminal Law (Department of Justice, Equality and Law Reform 2004), paragraph
2.90.
18 Ashworth Principles of Criminal Law 5th ed (Oxford 2006) at 139.
32
„reasonableness‟ approach, court decisions will prove to be more consistent and
principled, as well as guiding citizens in terms of their conduct.
2.27 The Commission has therefore concluded that, on the basis of the
rights-based analysis above and subject to the specific conditions of the
defence of legitimate defence to be set out below, it should be clearly stated
that a person does not commit an offence where he or she uses force by way of
defence to the use of unlawful force by another person. The Commission also
recommends that, pending the completion of the codification of all the defences
in criminal law, this general statement of the defence should be without
prejudice to the provisions in sections 18 to 22 of the Non-Fatal Offences
Against the Person Act 1997.
2.28 The Commission recommends that, subject to the specific conditions
of the defence of legitimate defence set out below, it should be clearly stated
that a person does not commit an offence where he or she uses force by way of
efence to the use of unlawful force by another person
p.32




Given the inconsistencies that arise due to the varied sources of law
governing self-defence, one of the primary purposes of this Report is to provide
clarity. Certainty and precision can be achieved by clearly setting out rules of
conduct through legislation. The primary recommendation is that we should
move away from a generalised rule and establish clear and concise guidelines
to deal with the law on the lawful use of force whether dealing with the defence
of the person, property, preventing a crime or assisting in an arrest. Citizens
have a right to clear guidance as to their conduct and more specifically; conduct
that will not be tolerated. Everyone in society is aware of the general concept of
„self defence‟ and that everyone has a right to protect themselves from attack.
However, society is less clear on the boundaries of that right; it is those
boundaries that need to be set down in legislation. Providing clear legislative
guidelines by implementing a threshold test and clearly setting down jury
direction with regard to the elements of imminence, necessity, proportionality
will, hopefully, achieve that aim
(p. 32)

This view is based on the principle of legality; namely that conduct
should not be punished unless it has been clearly and precisely prohibited by
the terms of a pre-existing rule of law. The legality principle is a foundational
principle of modern criminal law. Legality is usually associated with offences but
can equally be applied to defences, by setting out what a citizen may or may not
do. As with the offences in criminal law, there is a need for greater certainty in
the law of criminal defences. Certainty in law provides security for citizens to
rely on the law to be enforced for their protection and not to their detriment
provided they keep within its boundaries.19 In this section, the Commission
considers the arguments in favour and against setting a clear minimum
standard for lawful use of force against a threat
p. 33

The question to be answered here is whether it is possible to identify
a minimum level of threat to the person which would justify, in particular, lethal
defensive force? For example, does the threat have to be one of death or
serious harm or is a threat of confinement for example, a sufficient threat to
justify lethal defensive force? Broadly speaking two approaches to the issue of
physical threats and a threshold requirement can be set out. The first approach
involves defining a threshold test, while the second approach involves a
generalised test of “reasonableness”
p. 34

***By contrast, the “reasonableness” approach has been adopted in a
number of States.
p. 35



****2.43 The „reasonableness‟ approach was placed on a statutory footing in
both Tasmania and New Zealand, in the Tasmanian Criminal Code33 and the
New Zealand Crimes Act 196134 respectively. The New Zealand Court of
Appeal held in R v Kneale35 that the threshold requirement had been abolished
in favour of a reasonableness approach whereby the “seriousness of the threat
or attack is relevant at the point of determining the reasonableness of the
response.”36
2.44 The Commission‟s proposed recommendation to abandon the
generalised „reasonableness‟ test in favour of a threshold test, was subject to
critique during the consultation process. The principal argument against such a
requirement was that it does not allow a person to react to the prevailing
circumstances, as the person perceives or understands them to be. It was
suggested that a person must be allowed to react reasonably to the threat he or
she perceives or understands it to be, regardless of how another might perceive
or understand the threat to be. Thus a subjective approach should be adopted
on the basis that people‟s responses to threats or perceived threats differ.
p. 36

2.45 Such concerns are also evident in recommendations made by some
of the Canadian law reform bodies who have recommended that a specific
threshold test for lethal defensive force should be abandoned in favour of a
general provision that applies to fatal and non-fatal force.37
2.46 Nonetheless, the Commission believes the argument in favour of
setting a minimum threshold requirement is persuasive. The Commission
believes that limitations should be specified in clear rules rather than based on
a concept of “reasonableness”. Citizens are entitled to detailed guidance on the
32 (1987) 71 ALR 641 at 661.
33 Section 46 Tasmanian Criminal Code.
34 Section 48 New Zealand Crimes Act 1961.
35 R v Kneale [1998] 2 NZLR 169.
36 R v Kneale [1998] 2 NZLR 169 at 178.
37 See the Law Commission of Canada Working Paper on Criminal Law: the general
part – liability and defences (No. 29 1982); Law Commission of Canada Report
on Recodifying Criminal Law (No 31 1987).
37
proper limits of what he or she can lawfully do. Setting a minimum threshold to
the law on legitimate defence goes someone to achieving that

P. 36-37




However, the
Commission does make the point that lethal defensive force for the protection of
a third party should only be lawful where the person who is being defended
could also have used such force. Any hardship caused in this regard would be
alleviated by allowing for mistakes in this respect.
P. 43


2.53 Despite arguments in favour of a generalised test of
“reasonableness” the Commission recommends that a minimum threshold
requirement should be imposed on the use of lethal defensive force. Members
41 See generally section 48 of the New Zealand Crimes Act 1961; Queensland
Criminal Code, section 273; Western Australian Criminal Code, section 250;
Tasmanian Criminal Code, section 46; Northern Territory Criminal Code, sections
27(g) and 28(f); South Australian Criminal Law Consolidation Act 1935, section
15(3)(a); Commonwealth Criminal Code, section 10.4(2)(a) and (b); Australian
Capital Territory Criminal Code 2002, section 42(2)(a)(i); section 3.05 of the US
Model Penal Code.
42 [1954] IR 12 at 17.
43 LRC CP 41-2006, at paragraph 2.61.
44 [2006] IECCA 165; [2007] 3 IR 130. See paragraph 2.16ff above.
39
of society have a right to clear criteria by which they can judge their conduct
when making “spur of the moment” decisions. The Commission believes that
the general test of “reasonableness”, as it currently stands, fails to achieve this.
The Commission recognises that the term „reasonable‟ has its merits in terms of
a general understanding of the word, when directing a jury, where self defence
is raised. However, without clearly setting out the substantive requirements of
the defence and imposing a minimum threshold test before the defence is
raised, the Commission believes undeserving cases will continue to benefit from
the defence.
2.54 Threshold tests in their own right operate as a useful guide and a
signpost for the whole community (including potential attackers, defenders as
well as those who have to judge the actions of the defendant) as to the types of
conduct that might warrant a lethal defensive response. By implementing a
threshold test, potential defenders are put on notice as to the minimum
requirements for successful pleas; juries are provided with a useful starting
point for assessing claims of legitimate defence; and this supports the
democratic function of drawing a clear line dividing acceptable and
unacceptable defensive conduct.45
2.55 Furthermore, the Commission believes it is important to send out a
clear message regarding the sanctity of life. Imposing a minimum threshold
requirement protects the right to life of the attacker as set out in the Article 40.3
of the Constitution by demanding that lethal defensive force may not be
resorted to in response to minor threats and attacks
P. 39

2.57 The Commission recommends that a minimum threshold requirement
should be imposed on the use of private defensive force.
45 LRC CP 41-2006, at paragraph 6.54.
46 Under Sections 3.04 (2)(b) of the US Model Penal Code the use of lethal force is
permitted in defence of the person only where necessary to repel threats of
“death, serious bodily injury, kidnapping or sexual intercourse compelled by force
or threat”.
40
2.58 The Commission recommends that lethal defensive force by oneself
or in protection of a third party should only be permitted to repel threats of:
death or serious injury,
rape or aggravated sexual assault,
false imprisonment by force,
and,
PAGE 39-40


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2012, c. 9, s. 2 at https://laws-lois.justice.gc.ca/eng/annualstatutes/2012_9/  ...Assented to 2012-06-28

Bill C-26
came into force 11 March 2013

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 p. 6


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. p. 7

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Guide
Bill C-26 (S.C. 2012 c. 9)
Reforms to Self-Defence and
Defence of Property:
Technical Guide for Practitioners
Department of Justice Canada
March 2013
at https://www.justice.gc.ca/eng/rp-pr/other-autre/rsddp-rlddp/pdf/c26.pdf

In this respect, the new law includes a list of factors that could be taken into account to
assess “reasonableness”. The list serves several purposes. It aims to make clear that
certain jurisprudence applicable to the determination of a successful defence is
intended to continue, as appropriate, under the new law. It also serves to provide some
guidance about how the new law is intended to be applied by clarifying that some of the
24
elements of the old law that have been eliminated as determinative requirements
nonetheless continue to be relevant. It may also serve as a useful reference for jury
instructions
p. 24

 Joanne Klineberg
joanne.klineberg@justice.gc.ca

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Parliament
https://www.parl.ca/legisinfo/en/bill/41-1/c-26


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On Hamish Stewart
Stewart, Hamish, The Role of Reasonableness in Self-Defence (2003). Canadian Journal of Law and Jurisprudence, Vol. 16, p. 317, 2003, Available at SSRN: https://ssrn.com/abstract=1623318
Hamish Stewart, “The Constitution and the Right of Self-Defence” (2011) 61:4 UTLJ 899


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on Colton FehrSelf-Defence and the Constitution., 2017 CanLIIDocs 3969

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