FAQ - Aggravated Assault

An accused is not guilty of an offence if the accused believes on reasonable grounds that force is being used against the accused or another person or that a threat of force is being made against the accused or another person;⁷⁷ the act that constitutes the offence is committed for the purpose of defending or protecting the accused or the other person from that use or threat of force;⁷⁸ and the act committed is reasonable in the circumstances.⁷⁹

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In determining whether the act committed is reasonable in the circumstances, the Court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: the nature of the force or threat;⁸⁰ the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;⁸¹ the accused’s role in the incident;⁸² whether any party to the incident used or threatened to use a weapon;⁸³ the size, age, gender and physical capabilities of the parties to the incident;⁸⁴ the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;⁸⁵ any history of interaction or communication between the parties to the incident;⁸⁶ the nature and proportionality of the accused’s response to the use or threat of force;⁸⁷ and whether the act committed was in response to a use or threat of force that the accused knew was lawful.⁸⁸

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The defence of self-defence does not apply if the force is used or threatened by another person for the purpose of doing something that the person required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.⁸⁹

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The same three basic issues arise in all cases of self-defence: whether the accused reasonably believed that force or a threat of force was being used against the accused or someone else; whether the subjective purpose for responding to the threat was to protect the accused or other people; and whether the accused’s act was reasonable in the circumstances.⁹⁰ These three inquiries can usefully be conceptualized as the catalyst; the motive; and the response.⁹¹

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In the context of self-defence, the accused’s belief must be held on reasonable grounds.⁹²

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The question is what a reasonable person with the accused’s relevant characteristics and experiences would perceive.⁹³ An honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim to self‑defence.⁹⁴ To say that a belief is unreasonable in the context of a self‑defence claim is to declare the accused’s act criminally blameworthy.⁹⁵

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Whether an accused can benefit from the defence of self-defence requires determining whether the accused subjectively engaged in the act was undertaken by the accused in order to defend or protect the accused or others from the use or threat of force.⁹⁶

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The focus must be upon what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time.⁹⁷

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There is no requirement for the Crown to show that an accused’s role in the incident was unreasonable before an accused’s role in the incident may be considered as a factor in determining whether the act committed was reasonable.⁹⁸

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When both parties are engaged in aggressive and confrontational behaviour, it is not necessary to find that only one party instigated, provoked, caused, or consented.⁹⁹ The accused’s role in the incident includes acts and omissions, decisions taken and rejected, and alternative courses of action which may not have been considered, capturing the full range of human conduct from the helpful stranger and the innocent victim of an unprovoked assault to the initial and persistent aggressor and everything in between, encompassing not only provocative or unlawful conduct but also hotheadedness, the reckless escalation of risk, and a failure to reassess reasonably the situation as the situation unfolds.¹⁰⁰

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The analytical purpose of considering the accused’s role in the incident is the accused’s role in the incident’s relevance to the reasonableness assessment when there is something about what the accused did or did not do which led to a situation when the accused felt the need to resort to an otherwise unlawful act to defend the accused or another.¹⁰¹ The act’s ultimate reasonableness is coloured by whether the accused caused or contributed to the circumstances which the accused claims compelled the accused to respond. ¹⁰² When an accused opts to stand the accused’s ground or advance while armed towards a perceived threat rather than de-escalating or reassessing the situation as new information becomes available, a trier of fact is entitled to account for this role when assessing the accused’s ultimate act’s reasonableness.¹⁰³ But “role in the incident” is not limited to conduct that would weigh against the reasonableness of the accused’s act and when the accused plays a praiseworthy role in the incident, this may be a compelling factor supporting the conclusion that the accused’s ultimate act was reasonable self-defence.¹⁰⁴

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A trier of fact can conclude that self-defence is not disproven even though the accused escalated the incident that led to the victim’s death, was mistaken about the existence of the use, of force and used disproportionate force.¹⁰⁵

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An accused need not wait until the accused reasonably apprehends death or grievous bodily harm before resorting to deadly force. ¹⁰⁶

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In order for an accused to use the defence of self-defence, the accused must prove that self-defence has an air of reality, following which the Crown must disprove the accused’s self-defence beyond a reasonable doubt.¹⁰⁷

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The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test. ¹⁰⁸ The correct approach to the air of reality test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. ¹⁰⁹ When there is an air of reality to a defence, the defence should go to the trier of fact.¹¹⁰ A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused’s only chance for an acquittal. ¹¹¹ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence. ¹¹² The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.¹¹³ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.¹¹⁴

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The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.¹¹⁵

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Whether there is an air of reality to a defence is a question of law subject to appellate review. ¹¹⁶ It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.¹¹⁷

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In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true. ¹¹⁸The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case’s factual circumstances, or upon any other evidential source on the record. ¹¹⁹ There is no requirement that the evidence supporting the air of reality be adduced by the accused. ¹²⁰

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An alleged aggravated assault can be a valid act of self-defence.¹²¹