Crown appeal from acquittal on aggravated assault charge. Trial judge acquitted on the basis of defence of property under s. 35 CC. Issue regarding degree of force.
Held: Appeal dismissed.
“The force used by the accused need not be nicely calculated. The tests for this defence have some objective and some subjective elements. The test is not that for civil negligence. Hindsight is not the test. Nor is the test for this defence what injuries actually resulted.” The complainant was a trespasser, and the finding that reasonable force was used by the accused under s. 35 CC, was open to the judge to make.
M. Duckett, Defence Counsel