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R v Baxter (1975), 27 CCC (2d) 96 (Ont CA)


B shot man. Came to his house threatened him in a car. B says did not mean to shot him that he was aiming for the car. They also shot at him


Who gets to use 34(1) and who gets to use 34(2) – are both available to people who cause death or grievous bodily harm?


Either 34(1) or 34(2) can apply in situations where a victim has been killed or grievously wounded.


Need to use an objective-subjective approach – 34(1) and 34(2) both have defence of mistake of fact

A. Person accidently kills or harms someone while committing an unlawful act, while trying to defend oneself
**34(1) is the defence – it is available if the force used was no more then necessary for self-defence.
B. Person accidently killed someone while committing an unlawful act, but used more force then reasonably necessary while trying to defence themselves
**Can use 34(2) – reasonable apprehension of death or harm AND reasonable belief there was not way to prevent it except for using harm
**34(1) not available
C. Person killed or harm, but it was intended while trying to protect themselves
**S.34(2) available
**34(1) not available


s.34(1) – unprovoked assault – justified in repelling force with force (self-defence)
*Less serious situations – the results of the self-defence are less serious
**Only restriction – cant apply more force then necessary
s.34(2) deals with more serious (self-defence)
*Anyone who causes grievous bodily harm or killed them
*Person will only be able to access this if he meets the terms in s.34(2)(a)
*Not other legal alternative
*The force used does not have to be proportionate to the harm perceived

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