[22] The appellant contends that the trial judge erred in not providing the jury with the precise wording of s. 37 and of s. 34(2) of the Code. Sections 34 and 37 read:
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
[23] The second paragraph of the initial charge to the jury on self-defence (reproduced in para. 15 above) uses the language of s. 34(1). The third paragraph uses the language of s. 34(2) but (reasonably) excludes causation of death or reasonable apprehension of death, neither of which factors could have any application in this case. The last two sentences of the fourth paragraph and the entirety of the fifth paragraph encompass the wording of s. 37.
[24] (I note in passing that the trial judge instructed the jury with respect to the subjective element of self-defence and did not instruct on the objective element discussed in the cases. That has not become an issue on the appeal, no doubt because it likely operated to the benefit of the appellant.)
[25] The appellant argues that s. 34(2) is available to “initial aggressors”, citing McIntosh at para. 25. He argues that s. 37 is also available to initial aggressors citing R. v. Pintar 1996 CanLII 712 (ON CA), (1996), 110 C.C.C. (3d) 402 at 423-424 (Ont. C.A.) and R. v. Grandin 2001 BCCA 340 (CanLII), (2001), 154 C.C.C. (3d) 408 at paras. 41 and 54 (B.C.C.A.).