Is self-defense allowed when there are objectively reasonable grounds but it is actually done subjectively for improper reasons?
<p>Suppose that someone uses deadly self-defense in circumstances when it would have been objectively reasonable to do so (e.g., someone has a gun pointed at you and has threatened to shoot). But, the actual subjective reason that the person used it was invalid (e.g. the partially deaf person firing at the assailant misheard the threat to shoot and thought the assailant was insulting his dog).</p>
<p>Is this a good defense to murder?</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>The person claiming self-defence <em>must have the subjective belief</em> that &quot;a threat of force is being made against them or another person.&quot; Such belief must also be based on reasonable grounds. They must also act <em>with the subjective purpose</em> of protecting themselves or the other person from that use or threat of force.</p>
<p>This comes from the text of the defence, codified at s. 34 of the <em>Criminal Code</em>. It reads:</p>
<blockquote>
<p>34 (1) A person is not guilty of an offence if</p>
<p>(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;</p>
<p>(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and</p>
<p>(c) the act committed is reasonable in the circumstances.</p>
</blockquote>
<p>&quot;Unless the accused subjectively believed that force or a threat thereof was being used against their person or that of another, the defence is unavailable&quot; (<em>R. v. Khill</em>, <a href="https://canlii.ca/t/jjlbr#par52" rel="nofollow noreferrer">2021 SCC 37, para. 52</a>).</p>
<p>The National Judicial Institute's <a href="https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/defences/self-defence-in-force/defence-34-self-defence/" rel="nofollow noreferrer">model jury instructions</a> slightly rephrases:</p>
<blockquote>
<p>[the accused] believed that force [or the threat of force] was being used against him/her [or against another person] and [accused]’s belief was based on reasonable grounds</p>
</blockquote>
<hr />
<p><sup>Regarding evidence in general: the court needs <em>some evidence</em> on which to give an &quot;air of reality&quot; to every element of this defence in order to place the burden on the Crown to rebut the defence beyond a reasonable doubt. <strong>This does not require the accused to testify about their subjective belief. The evidence about the subjective belief can come from elsewhere in the evidence. For example, even if an accused had no memory of the encounter, there may nonetheless be evidence about their subjective belief: video evidence of the encounter, hearsay evidence about what the accused said during the events, physical evidence revealing a defensive posture, etc.</strong> The evidence <em>must</em> support an inference of a subjective belief in a threat. It is not enough that the evidence shows that a subjective belief would have been reasonable. But none of that is relevant to the question of what the elements of self-defence are or whether an act taken without the subjective belief that the accused or another person is being threatened is self-defence. The question has helpfully taken the standard approach to legal hypotheticals of just asserting what the facts are in order to take questions of evidence off the table.</sup></p>

<h2>No, this is not <a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/self-defence.html" rel="noreferrer">self-defence</a></h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="new-south-wales-container">new-south-wales</a></p>
<p>The Crown must eliminate self-defence beyond reasonable doubt by either:</p>
<p>3(a) Proving at the time that the accused did not believe they were acting in self-defence, or</p>
<p>3(b) the accused's act was not a reasonable response in the circumstances as they perceived them</p>
<p>On the facts given, both are a gimme. Therefore, the correct verdict is murder.</p>

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