CITATION: R. v. Pandurevic , 2013 ONSC 2978
DATE: 20130527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MARKO Pandurevic
Applicant
Glen Crisp and Emma Haydon, for the Crown, Respondent
John Rosen, for the Applicant
HEARD: April 10, 2013
Ruling re Application of the Citizen’s Arrest and Self-defence Act
MacDonnell, J.
[1] On April 8, 2013 the applicant came before this court for trial on a charge of first degree murder. The offence was alleged to have occurred on July 31, 2010. As part of his defence, the applicant proposed to advance a claim that he had acted in self-defence.
[2] At the time of the incident giving rise to the charge, the defence of self-defence was governed by ss. 34 to 37 of the Criminal Code. On March 11, 2013, the Citizen’s Arrest and Self-defence Act, S.C. 2012 c. 9, came into force. The Act repealed ss. 34 to 37 and replaced them with a new s. 34, which is meant to apply to all situations in which self-defence is raised.
[3] Prior to selection of a jury, the applicant brought a motion for directions in relation to whether the jury would be instructed to assess his defence on the basis of the ‘new’ s. 34 or whether the former provisions, and in particular the former ss. 34(2) and s. 35, would continue to apply. His position was that as the new provisions are more favorable to self-defence claimants than the former, he should have the benefit of them. The position of the Crown was that the applicant’s right to self-defence had to be determined in accordance with the law that existed at the time of the alleged defensive acts.
[4] After hearing the submissions of counsel, I ruled that the intention of Parliament in enacting the amendments to the self-defence regime was that the amendments would have immediate application at trials in which self-defence was raised notwithstanding that the conduct underlying the defence occurred prior to the coming into force of amendments. At the time of the ruling, I provided brief oral reasons and indicated that more complete written reasons would follow. These are those written reasons.
A. General Principles
[5] As is not uncommon, the Citizen’s Arrest and Self-defence Act is silent with respect to whether its provisions are to be applied retroactively, retrospectively or prospectively. To answer that question, therefore, courts must call in aid the principles of statutory interpretation. One of those principles is that Parliament is presumed to have intended that legislation affecting substantive rights would not be applied retroactively or retrospectively.
[6] Legislation that affects the content or availability of a defence that a party to litigation would otherwise have been entitled to raise affects the substantive rights of the party. The amendments in issue here affect the parameters of the defence of self-defence and accordingly they fall within the scope of the presumption against retroactive or retrospective application.
[7] That is not the end of the inquiry, however. Along with the other well-established presumptions of statutory interpretation, the presumption against retroactive or retrospective application is merely a tool, albeit a very important tool, for determining Parliament’s true intent, which is the main objective of statutory construction: R. v. Ali, 1979 CanLII 174 (SCC), [1980] 1 S.C.R. 221, per Pratte J. at p. 235. In The Interpretation of Legislation in Canada (4th), Pierre-Andre Côté put the matter as follows:
Of course such presumptions…are no more than “signposts” or “guides” to legislative intent, and do not relieve the judge of the duty to study the problem as a whole. In fact, presumptions may be set aside in the face of explicit or implicit contrary legislative intent, the latter deduced from factors such as the purpose of the statute, the circumstances in which it was passed, and the method by which it came into force.[^1]
[8] In short, the presumption against retroactive or retrospective application of legislation affecting substantive rights is rebuttable. All of the relevant circumstances must be considered, among them the purpose of the legislation, the mischief it was intended to cure, and the consequences of applying it retroactively on the one hand or prospectively on the other. Only after considering all of those matters can a determination be made as to whether the presumption should prevail.
B. Relevant Considerations
(i) The Mischief Animating the Amendments
[9] The starting point in a search for Parliament’s true intent in amending the self-defence provisions of the Code is the mischief that the amendments were intended to cure.
[10] The incoherence of the manner in which ss. 34 to 37 of the Criminal Code articulated the defence of self-defence has been the subject of uniformly withering criticism from law reformers, academics and all levels of the Canadian judiciary for more than 30 years.
[11] In 1982, in one of the more charitable characterizations to be found, the Law Reform Commission of Canada described ss. 34 to 37 as “unduly complicated” and as containing “excess detail”.[^2] The judicial characterization was considerably more damning. Writing for the majority in R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, Chief Justice Lamer described the self-defence provisions as ‘highly technical’, ‘excessively detailed’, ‘deserving of much criticism’, and ‘internally inconsistent’.[^3] He acknowledged that both juries and judges find them ‘unbelievably confusing’, that giving effect to their plain meaning “may lead to some absurdity”, and that “any interpretation which attempts to make sense of [them] will have some undesirable or illogical results”.[^4] He concluded that “it is clear that legislative action is required…”[^5]
[12] The provincial appellate courts were quick to add their voices to what rapidly became a chorus of criticism. In R. v. Sangha, [1995] B.C.J. No. 1061, Prowse J.A. observed that the law of self-defence was in an “utter state of confusion”.[^6] After referring to the comments of Chief Justice Lamer in McIntosh, he stated:
I fully endorse these comments, and would add that one of the results of the state of confusion … is the necessity, in some cases, of new trials with their attendant hardship on accused, complainants, witnesses, and the general public who ultimately bear the financial cost of these proceedings.[^7]
[13] In R. v. Pintar, 1996 CanLII 712 (ON CA), [1996] O.J. No. 3451 (C.A.), Moldaver J.A. observed that “it is no secret that many trial judges consider their instructions on the law of self-defence to be little more than a source of bewilderment and confusion to the jury.” He stated:
Regardless of their efforts to be clear, trial judges often report glazed eyes and blank stares on the faces of the jury in the course of their instructions on self-defence. Disheartening as this may be, most judges tend to believe that juries are extremely adept at assessing legitimate cases of self-defence and are therefore likely to come to the right result in spite of the confusion created by the charge. While this may be true, it provides little comfort to an accused who has been convicted in the face of legal instruction so complex and confusing that it may well have diverted the jury's attention away from the real basis upon which the claim to self-defence rests.[^8]
[14] In R. v. Lei, [1997] M.J. No. 548 (C.A.), Chief Justice Scott adopted the extra-judicial comments of Watt J. at the 1996 National Criminal Law Program on Substantive Criminal Law:
The sections [of the Code in relation to self-defence] overlap and, in certain respects at least, are internally inconsistent. The relationship amongst the provisions is, on a clear day, murky. A summing-up on the issue of self-defence is, at best confusing, more likely to leave jurors in a dissociative or catatonic state. "Instruction" on self-defence is a oxymoron. It is the profound suspicion, if not unshakeable belief of many trial judges, that jurors get it right on the issue of self-defence notwithstanding the summing-up, not because of it. The defence of person regime currently in place in the Criminal Code is badly in need of legislative reconstruction.[^9]
[15] Three years after Pintar, in R. v. Finney, [1999] O.J. No. 4215 (C.A.), Doherty J.A. described the meaning and interaction of ss. 34 to 37 as “notoriously confusing and illogical.”[^10] Two years after that, in R. v. Grandin, 2001 BCCA 340, [2001] B.C.J. 973 (C.A.), Finch J.A. observed that “the complex and confusing nature of the Criminal Code provisions on self defence has been the subject of comment and criticism by judges, lawyers and academics for many years.”[^11]
[16] The assessment of the self-defence provisions by the academic world mirrored that of the bench. David Paciocco referred to ss. 34 to 37 as “the most confusing tangle of sections known to law.”[^12] Eric Colvin and Sanjeev Anand stated bluntly that “the law of justified force in defence of the person is a mess.”[^13] Don Stuart wrote that “the defences of person and property in Canadian law are bedevilled by excessively complex and sometimes obtuse Code provisions.”[^14] In Criminal Law (4th) (2009), Manning, Mewett and Sankoff stated that “sections 34 to 37 … are hopelessly confusing and muddled”. After referring to Chief Justice Lamer’s plea for legislative reform, they continued:
Calls of a similar nature have rung out for years, but to date they have gone unheeded. Parliament seems unable or simply unwilling to rectify one the Criminal Code’s most glaring shortcomings.
There are many consequences arising from this failure to reform the law. Self-defence claims are incredibly common in cases of violence, and the jurisprudence is voluminous. Over the years, judges have come up with contradictory rulings on how to apply the Code’s provisions, many of which are plausible. Often, the question is whether to follow the literal wording of the Code with the various contradictions this creates, or try to interpret the sections more liberally in an effort to make sense of them all. Some judges have simply abandoned trying to interpret the provisions, focusing instead on the practical concerns involved with the defence. The result is complex charges to the jury and numerous appeals…
All of this is extremely unfortunate…[^15]
(ii) Parliament’s Response
[17] The torrent of criticism emanating from judges, lawyers, academics and law reform commissions concerning the incoherent manner in which the Criminal Code dealt with such an essential component of the criminal law did not go unnoticed on Parliament Hill, and in November 2011 the Minister of Justice introduced Bill C-26, which ultimately became the Citizen’s Arrest and Self-defence Act. Speaking in the House of Commons on December 1, 2011, the Parliamentary Secretary to the Minister acknowledged that reform was long overdue. He stated:
Parliament has a duty to ensure that laws are clear and accessible to Canadians, criminal justice participants and even the media. That is exactly what we are proposing to do in Bill C-26… When the laws which set out …rules are confusing, we fail in our responsibility to adequately inform Canadians of their rights. Obviously, unclear laws can also complicate or frustrate the charging provisions of the police who themselves may have difficulty in reading the Criminal Code and understanding what is and is not permitted. Bill C-26 therefore proposes to replace the existing Criminal Code provisions in this area with clear, simple provisions that would maintain the same level of protection as the existing laws but also meet the needs of Canadians today.
[18] Appearing before the Standing Committee on Justice and Human Rights on February 7, 2012, the Minister of Justice noted that ss. 34 to 37 had been largely unchanged for 120 years, and stated:
We have replaced those provisions with a simple, easy-to-apply rule for each defence. For decades criminal practitioners, the Canadian Bar Association, the Supreme Court of Canada, academics, and many others have criticized the law of self-defence primarily, but also the law of defence of property, as being written in an unnecessarily complex and confusing way. The complexity of the law is not without serious consequence. It can lead to charging decisions that fail to take into account the merits of the defences in particular situations. It can confuse juries, and it can give rise to unnecessary grounds of appeal, which cost the justice system valuable time and resources. The law should be clear and clearly understood by the public, the police, prosecutors, and the court. Bill C-26 meets those objectives. It makes the act more specific and simplifies it without sacrificing existing legal protections.
(iii) The ‘New’ Law of Self-defence
[19] The Citizen’s Arrest and Self-defence Act repealed ss. 34 to 37 of the Code and replaced them with a single section, s. 34, which provides a framework within which to assess all claims of self-defence. The amended defence contains three essential elements:
• A reasonable perception of force or a threat of force against the accused or another person – s. 34(1)(a);
• A defensive purpose for the accused’s act – s. 34(1)(b); and
• An objective determination of the reasonableness of the accused’s act – s. 34(1)(c).
[20] With respect to the third of those elements, ss. 34(2) provides that a court “shall consider the relevant circumstances of the person, the other parties and the act including but not limited to” a series of nine specified factors. Among those factors are “the nature of the force or threat”, “whether there were other means available to respond to the potential use of force”, “the person’s role in the incident” and “the nature and proportionality of the person’s response to the use or threat of force”. Under the former provisions of the Code, some of the nine factors were threshold requirements for the availability of the defence; under the ‘new’ law they are merely factors to be considered in the reasonableness calculus.
[21] Concurrent with the coming into force of the Citizen’s Arrest and Self-defence Act, the Department of Justice published a “Technical Guide for Practitioners” in relation to the amendments. This document was developed jointly by officials from the federal Department of Justice and their Provincial and Territorial counterparts and purports to “reflect the common understanding of FPT [Federal/Provincial/Territorial] Justice officials” with respect to the changes. It states: “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 working group whose recommendations were accepted by FPT Ministers responsible for Justice in 2009.” I accept that the Guide is merely an opinion as to the manner in which the amendments should be interpreted and as to what Parliament’s intent was, but given the role that the FPT justice officials played in laying the groundwork for the amendments, it is at least an educated opinion.
[22] The Guide states that Parliament’s intention was “to enact defences that express the fundamental principles that animate the laws of self-defence … so that the law itself corresponds to the approach taken by juries in deciding those cases.” It continues:
To achieve this objective, the new defences extract from the old provisions the common core elements of each defence, and codify those core elements in a single simple framework that is capable of assessing a defence claim in any situation. The new laws give effect to the defences' underlying principles in a more transparent way; they will facilitate jury instructions and allow decision-makers to come to conclusions more easily and simply.
Replacing numerous circumstance-specific defences with a single generally-applicable defence means that some of the former threshold requirements are no longer part of the defence as threshold requirements. However, the new laws still allow for consideration of elements which previously served to distinguish the different versions of the defences under the old law… Under the new generally-applicable defence, these elements are no longer threshold requirements that must be met for the defence to succeed, but they may be relevant considerations to be taken into account depending on the facts of a given case.[^16]
The intent of the new law is to simplify the legislative text itself, in order to facilitate the application of the fundamental principles of self-defence without substantively altering those principles.[^17]
Overall, it is Parliament's intention to give effect to established self-defence principles in a more transparent and consistent way. The new law should facilitate jury instructions and allow decision-makers to come to conclusions more easily and simply. The shift away from numerous circumstance-specific self-defence requirements provided by several distinct defences, and toward a single generally applicable defence, allows for the simplification of the law on the one hand, and also for consideration of all relevant factors within the context of individual cases, on the other. The new law allows former threshold requirements to carry more or less weight depending on the facts of each case, while simultaneously affirming their importance as a matter of policy and simplifying the task of the trier of fact. Of course, any and all relevant factors, including those which were never codified as defence requirements, can be taken into account in accordance with the general laws of evidence. The list of enumerated factors (in new subsection 34(2)) is neither exhaustive nor exclusive. Other considerations may properly apply in a given situation.[^18]
[emphasis added]
(iv) Parliament’s Aim in Enacting the Amendments
[23] When the provisions of the Citizen’s Arrest and Self-defence Act are considered in the context of the circumstances leading up to and surrounding its enactment, it is plain that Parliament’s aim was not to alter the essential nature of the defence of self-defence. The intention, rather, was to put an end to a situation that was an embarrassment to the rule of law. Parliament sought to substitute clarity and common sense for the incoherence, confusion and occasional absurdity that virtually every informed observer associated with the former statutory scheme, and to rid the administration of justice of the scandalous spectre of juries making decisions not because of the legal instructions they received but notwithstanding them.
[24] When the purpose of the legislation is characterized in this way, it points firmly toward an intention that upon the coming into force of the amendments, judges and juries would immediately begin to assess claims of self-defence under the amended provisions regardless of whether the allegedly defensive acts occurred before or after March 11, 2013. That is, it points toward a retrospective application of the amendments.
[25] To hold otherwise would put the remedial goals of the legislation on hold, and would leave the evils that the legislation was intended to cure to linger, perhaps for years,[^19] continuing to damage the repute of the administration of justice. It would leave the criminal trial courts with two versions of self-defence, one of which has been almost universally labeled as unsatisfactory. Further, it would leave those whose claim to self-defence involved conduct preceding March 11, 2013 but whose trials occurred after that date in the anomalous position of being unable to claim the benefit of amendments designed not to alter the essential nature of their defence but to clarify and to foster more reliable assessments of it.
[26] I would add that it is at least theoretically possible that some accused who might now be adjudged to have acted lawfully might have had their claim of self-defence rejected under the former regime because of its mandatory threshold requirements. Whether to deny those persons an acquittal would raise Charter issues is a question that was not argued on this application, and I need not consider it. There is no provision in the Charter that specifically addresses the issue, but it may be instructive to note that s. 11(i) recognizes that where the penalty for an offence is varied between the time of the offence and the time of sentencing, the accused is entitled to the benefit of the lesser penalty. The ‘Charter value’ underlying s. 11(i) is something of which Parliament would have been aware in enacting the amendments to the self-defence provisions, and it is a factor to be considered in relation to Parliament’s intent with respect to those amendments.
(v) The Presumption Against Retroactive or Retrospective Application
[27] The foregoing considerations are not the only matters that must be weighed in the balance in the effort to discern Parliament’s intent with respect to the temporal application of the Citizen’s Arrest and Self-defence Act. The Act affects the content and availability of the defence of self-defence and it is well-established that legislation that affects the content or availability of a defence affects substantive rights. Accordingly, the amendments fall within the scope of the principle of statutory interpretation that presumes Parliament not to have intended that legislation that affects substantive rights would be applied retroactively or retrospectively.
[28] The most recent application of that presumption by the Supreme Court of Canada occurred in R. v. Dineley, 2012 SCC 58. The issue in that case was whether the provisions of the Tackling Violent Crime Act, S.C. 2008, c. 6, which virtually eliminated the so-called “Carter” defence to a charge of operating a motor vehicle ‘over eighty’, applied where the alleged offence was based on conduct that occurred before the Act came into force.
[29] In a 4:3 division, the Supreme Court held that the provisions eliminating the Carter defence were intended to operate prospectively only. Writing for the majority, Deschamps, J. stated at paragraph 10:
Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively. [emphasis added]
[30] In Justice Deschamps view, “the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions ‘procedural’ or ‘substantive’, but in discerning whether they affect substantive rights.”[^20] She added that “the fact that new legislation has an effect on the content or existence of a defence, as opposed to affecting only the manner in which it is presented, is an indication that substantive rights are affected”,[^21] and she concluded that “the right of an accused to rely on a defence is a substantive right and that new legislation has to be interpreted so as not to deprive the accused of a defence that would have been open to him or her at the time of the impugned act.”[^22]
[31] In coming to the conclusion that legislation removing a defence that a party to litigation would otherwise have had should be presumed to have prospective effect only, the Supreme Court was on well-trodden ground. In Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256, for example, the plaintiff brought an action against her ex-husband for damages she suffered as a passenger in a motor vehicle that her ex-husband was driving. At the time of the accident, the Married Woman’s Property Act prevented spouses from suing each other in tort, and the Ontario Insurance Act provided that an insurer was not liable for damages arising from bodily injury to, among others, the insured’s spouse. After the accident but prior to the commencement of the action, those provisions were repealed by the Family Law Reform Act. The issue, then, was whether the Family Law Reform Act should be interpreted to apply retrospectively so as to remove the former provisions of the Married Woman’s Property Act and the Insurance Act as defences to the action.
[32] Speaking for the Court, LaForest J. held that to apply the repealing legislation retrospectively “would amount to a serious deprivation of an acquired right… and it should not lightly be assumed that this was the intention of the legislature.”[^23] He stated:
The rule against retrospective application should certainly have effect in a context such as the present one, where a party is deprived of a defence to an action by the operation of the new statute…. This is the whole point of the presumption. The law is leery of retrospective legislation to begin with; the legislature will not lightly be presumed to have intended a provision to have retrospective effect when the provision substantially affects the vested rights of a party.[^24] [emphasis added]
[33] The presumption against the retrospective application of legislation affecting substantive rights is a strong presumption, but it is also a rebuttable presumption and it is not difficult to find cases in which it was rebutted. One such case was National Trust Co. v. Larsen, 1989 CanLII 4769 (SK CA), [1989] S.J. No. 424, 61 D.L.R. (4th) 270 (C.A.). In Larsen, the Saskatchewan Court of Appeal was called upon to consider legislation that removed the right of a mortgagee to sue on the mortgagor’s covenant to pay, and specifically to determine whether the legislation applied to an action based on a covenant entered into prior to the coming into force of the legislation. In a sense, the situation was the other side of the Dineley and Angus coin: rather than removing a defence, the legislation created one. The majority in the Court of Appeal held that having regard to all of the circumstances, the intention of the legislature that the legislation be applied retrospectively was manifest, notwithstanding that it interfered with the vested rights of mortgagees. The reasoning of the Court was, of course, case-specific, but one of the considerations taken into account finds an echo in the case at bar: Cameron J.A. observed that if the legislation were interpreted as having a prospective application only, “the amending enactment would be delayed in its implementation; the law would lack uniformity; and the mischief would continue while time ran its course. … Given the whole of the circumstances and the uniformity that [retrospective application] would produce, it seems more probable than not that [retrospective application] is what the legislature had in mind.” [^25]
[34] In any event, what is of much greater significance in assessing the extent to which Dineley and Angus assist in the present case is that the legislation in question in both of those cases had a substantial adverse effect on the vested rights of a party. In both cases it removed or virtually removed what would otherwise have been a complete defence. The amendments in issue here do not remove, virtually remove or substantively alter the core elements of the defence of self-defence. Rather, as the Guide prepared by the FPT Justice officials argues, they facilitate the application of those core elements and “give effect to [them] in a more transparent and consistent way.” [^26]
[35] This is a critical point. The presumption against the retrospective or retroactive application of legislation affecting substantive rights is not only based on considerations of fairness – concerns for stability, certainty and predictability would remain relevant even if fairness were factored out of the analysis – but fairness is unquestionably a major consideration. In Grand Rapids v. Graham, 2004 M.J. 342 (C.A.), for example, Philp J.A. described it as “a critical factor to be considered in weighing the presumption against interference with antecedent rights in a particular case.”[^27] The author of Sullivan on the Construction of Statutes (5th ed.) (2008), states, at page 720:
Arguably, the key to weighing the presumption against interference with vested rights is the degree of unfairness the interference would create in particular cases, and whether such unfairness is necessary or warranted by the goals to be achieved. When the curtailment or abolition of a right seems particularly arbitrary or unfair, the courts require cogent evidence that the legislature contemplated and desired this result. When the interference is less troubling, the presumption is more easily rebutted. [emphasis added]
[36] Those comments are readily understood as matters of common sense. There is a natural antipathy against changing legal rules to attach a burden to an act after the act has occurred, when it is too late for the actor to modify his or her behavior. That antipathy may be substantially attenuated, however, where the ex post facto change to the rules either does not prejudice the actor’s position or improves it: cf. Brosseau v. Alberta (Securities Commission), 1989 CanLII 121 (SCC), [1989] 1 S.C.R. 301, at paragraph 48.
[37] In the case at bar, counsel for the applicant/accused submitted forcefully that under no circumstances will access to the defence of self-defence be narrower under the new version of the law than under the former, and that self-defence claimants will always be better off under the amended provisions. Crown counsel were not prepared to make that concession, but they were unable to posit a scenario where a claimant would be more likely to succeed under the former law. It would be premature to try to resolve that question so early in the life of the amendments. However, I am satisfied that for the overwhelming majority of self-defence claimants, the changes are either neutral or provide a benefit, if only because of the elimination of the threshold requirements contained in the former law, and that if there are circumstances in which the former law would have provided a wider defence, such circumstances will not arise frequently. That is a significant factor attenuating the force of the presumption against retroactive or retrospective application and an important feature distinguishing this case from cases such as Dineley and Angus.
[38] I am aware that in R. v. Evans, 2013 BCSC 462, [2013] B.C.J. No. 500 (Sup. Ct.), one of the first cases to consider the amendments, Fisher J. was not prepared to go as far as I have in characterizing the impact of the changes on the scope and availability of self-defence. She stated that “it is not [yet] possible to assess whether they provide a broader or narrower benefit on an accused than the old provisions.”[^28] She observed:
Some requirements that were determinative under the old sections are now factors that must be taken into account in assessing whether an accused's actions were reasonable. For example, an accused who used excessive force may have been able to rely on self-defence under the old s. 34(2) but now the nature and proportionality of an accused's response to the use or threat of force is a factor to be considered in all cases. Similarly, there was no duty to retreat under the old ss. 34 or 37 and now 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 is a factor as well.[^29]
[39] Fisher J.’s ambivalence appears to have flowed from the inclusion of proportionality and alternatives to the use of force as factors to be considered in assessing all claims of self-defence. She appears to have been concerned that this might tend to narrow the availability of the defence in some cases. In my view, the concern is more theoretical than real. As Justice Fisher noted, the factors listed in s. 34(2) are only considerations, not preconditions. Further, whether an accused is entitled to a defence of self-defence has always been rooted in an assessment of the reasonableness of what he or she did, and as a practical matter the matters listed in s. 34(2) would inevitably have found their way into the analysis.
[40] By clearing the path to the core issue of reasonableness, the new provisions provide a benefit to all accused with a legitimate self-defence claim. I am prepared to assume that there will be some cases in which the cleared path is narrower than before and I accept that this is a relevant consideration in the assessment of what Parliament’s intent was in relation to the application of the amendments. However, it is not a determinative consideration. It was open to Parliament to conclude that the benefits of a retrospective application substantially outweighed the disadvantages that this might give rise to in isolated instances.
[41] In Evans, Fisher J. concluded that “the new self-defence provision in s. 34 has effected a substantive change in the content of the defence and as such must be applied prospectively only.”[^30] With respect, I am unable to agree with the approach that she took in reaching that conclusion. Although she acknowledged that the presumption against retrospectivity could be rebutted, she never conducted an analysis to determine if it was rebutted in this case. Further, while she was unable to determine whether the amendments provided a broader or narrower benefit to the accused, she in any event dismissed this as a relevant consideration.[^31] Given that a substantial part of the rationale for the presumption against retroactivity is the unfairness of adversely affecting vested rights, an assessment of the actual impact of the amendments is not an irrelevant factor. In addition, at no point in her reasons did Fisher J. consider the nature of the mischief that the amendments were addressing and accordingly she never considered the consequences of not applying them retroactively.
C. Conclusions
[42] The amendments to the provisions of the Criminal Code introduced by the Citizen’s Arrest and Self-Defence Act affect the content and availability of the defence of self-defence and thus they fall within the scope of the presumption against retroactive or retrospective application of legislation affecting substantive rights. That presumption is rebuttable. Its strength will vary from case to case. Whether it has been rebutted in any particular case requires a consideration of all of the circumstances, including the nature of the mischief that the legislation was meant to address, the manner in which the legislation addressed it, the extent to which substantive rights will be adversely affected by a retrospective application, and the consequences of a purely prospective application. Only after considering all of those matters can a determination be made as to what the legislature intended, which is always the main objective of the exercise.
[43] For the reasons I have expressed, I am of the view that to apply the amendments prospectively only would frustrate the remedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant to eradicate. That is a factor that strongly suggests an intention for a retrospective application. Further, the strength of the presumption against retrospectivity is attenuated by the fact that the amendments will overwhelmingly be beneficial to those who claim to have acted in self-defence and that any adverse impact of a retrospective application will be isolated and minimal. A consideration of all of the circumstances, in my view, gives rise to a clear and compelling inference that Parliament meant for the amendments to have immediate application at all trials in which the defence of self-defence was asserted.
[44] Accordingly, I ruled that the jury would be instructed to consider the applicant’s position in accordance with the provisions of the ‘new’ s. 34.
MacDonnell, J
Released: May 27, 2013
R. v. Pandurevic , 2013 ONSC 2978
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MARKO PANDUREVIC
REASONS FOR RULING
MacDonnell, J.
Released: May 27, 2013
[^1]: At pages 129-130 [^2]: Law Reform Commission of Canada, Working Paper 29, Criminal Law – The General Part: Liability and Defences, at pages 99-100. [^3]: At pages 696 [^4]: At 697 [^5]: ibid [^6]: At paragraph 17 [^7]: At paragraph 18 [^8]: At paragraph 26 [^9]: At paragraph 15 [^10]: At paragraph 18 [^11]: At paragraph 30 [^12]: Getting Away With Murder, Irwin Law (1999), at page 274 [^13]: Principles of Criminal Law (3rd), Thomson/Carswell (2007), at page 322 [^14]: Canadian Criminal Law (6th) (2011), at page 511 [^15]: At pages 531-2 [^16]: At page 2 [^17]: At page 8 [^18]: At page 9 [^19]: In cases tried in the Ontario Superior Court, it is not uncommon for trials to begin 2 to 3 years after the relevant events. In the case at bar, which is not atypical, the accused’s trial commenced 32 months after the incident giving rise to the charge. [^20]: At paragraph 11 [^21]: At paragraph 16 [^22]: At paragraph 18 [^23]: At page 267 [^24]: At pages 266-267 [^25]: At p. 280 (D.L.R.) [^26]: At page 9 [^27]: At paragraph 25 [^28]: At paragraph 12 [^29]: At paragraphs 12 and 25 [^30]: At paragraph 17 [^31]: At paragraph 16