Where a defence of self-defence is raised, before the Court takes steps to fully consider it, the Court must first decide whether there is an air of reality to the self-defence point.
When a trial judge determines whether there is an air of reality to a self-defence argument, the trial judge does not make credibility findings, weigh evidence, make findings of fact or draw factual inferences. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury or the trier of fact and not how the jury or trier of fact should ultimately decide the issue. The air of reality test is not a high burden. The Court must determine if there is some evidence upon which a reasonable instructed jury could find that self-defence applies.
If there is an air of reality to the defence of self-defence, then the Crown must disprove beyond a reasonable doubt that the defendant acted in self-defence. The Crown can do this by proving beyond a reasonable doubt that one or more of the preconditions for self-defence in s.34(1) of the Criminal Code do not apply as follows:
1. Did the accused believe on reasonable grounds that force or a threat was being used against him or her?
2. Was the act that constitutes the offence committed for the purpose of defending or protecting the accused from the use or threat of force?; or
3. Was the act committed reasonable in the circumstances? *
William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.