CASE: R. v. Proulx [1998] B.C.C.A.

LOCATION:

Text page 273

CASE RELATES TO:

Criminal Code s.34(2) – Self-defence – mistake of fact

FACTS OF THE CASE:

See text.

The accused appealed on the basis that if the judge had charged the jury properly, his likely wouldn’t have been convicted.

HELD:

The B.C. Court of Appeal set aside the conviction and ordered a new trial.

REASONING AND LEGAL SIGNIFICANCE:

Section 34(2) states that there are three elements that must be satisfied for the defence of Self-defence to succeed. They are:

1. The existence of an unlawful assault,

2. A reasonable belief in the risk of death or grievous bodily harm, and

3. A reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.

The judge stated, that

“…if there is evidence which would support a finding that an accused believed on reasonable grounds that he was being assaulted, the jury must be instructed that such a belief will satisfy this element of the defence. In this case the jury was not so instructed.”

The implication is that the honest, (even if mistaken) belief that one is being assaulted is enough to satisfy the requirements of section 34.