Self-Defence and the Constitution
(2017) 43:1 Queen's Law Journal 85
39 Pages Posted: 16 Apr 2018
Date Written: December 1, 2016
Abstract
The new self-defence provisions enacted through the Citizen's Arrest and Self-Defence Act were meant to simplify the prior statutory scheme, which was frequently criticized for being unduly complex and internally inconsistent. Instead of imposing clearly defined requirements, the new provisions have adopted a non-exhaustive list of factors that courts must consider in determining whether the accused’s defensive act was reasonable in the circumstances. This approach provides courts with woefully inadequate guidance. To aid courts in interpreting the new self-defence provisions, the author maintains that it will be necessary to parse the nuanced moral distinctions inherent in the law of self-defence. By constitutionalizing self-defence along a continuum of principles—moral involuntariness, moral permissibility and moral innocence—the factors relevant to self-defence can be applied in a manner which is commensurate with the moral qualities of the accused’s act.
Keywords: Self-Defence - Justification - Excuse - Constitution
JEL Classification: K14
Suggested Citation: Suggested Citation