New & Notable: Restrospective Application of new Self-Defence

Pandurevic was charged with first degree murder; Pandurevic sought to claim that he had acted in self-defence. The homicide took place in 2010 and Pandurevic’s trial commenced on April 8, 2013.

At the time of the offence the self-defence provisions found at sections 34-37 of the Criminal Code governed. On March 11, 2013 however, the Citizen’s Arrest and Self-Defence Act [hereafter the Act] came into force.  This new legislation repealed the old self-defence provisions and replaced them with a ‘new’ s.34 which is intended to apply in all instances where self-defence is raised.

Prior to the commencement of his trial Pandurevic brought an application for ‘directions from the court’ on whether the Act applied retrospectively. The Crown opposed the application.

MacDonell J found that despite the presumption that such changes in the law apply prospectively, this Act applies retrospectively: 2013 ONSC 2978.

First, MacDonell J noted that both the opinion of the judiciary and the academicians  was aptly captured by, then professor now, Justice Paciocco who referred to ss.34-37 as “the most confusing tangle of sections known to law” [at para 16].

The Parliamentary response to this criticism culminated in the enactment of  the Act which the Minister of Justice lauded as:

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 [para 18].

Second, MacDonell J referred to the “Technical Guide for Practitioners” [hereafter the Guide] published by the Department of Justice at the time the Act came into force.  The Guide states, inter alia, that:

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.


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 [para 22].

MacDonell J thus concluded that:

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.

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 [paras 23-24].

And 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 [para 43].