R. v. Paice, [2005] 1 S. C.R. 339 Following a scuffle inside a bar, Christiano Paice challenged Clinton Bauck to a fistfight outside the bar. Once outside, Bauck pushed the accused once or twice. Paice then hit Bauck on the jaw, and Bauck died of injuries he suffered when his head hit the pavement. Paice was charged with manslaughter but argued that both of them consented to the fight, or alternatively, that he acted in self-defence. The trial Judge acquitted Paice on the ground that, following the deceased’s pushing which constituted an unlawful assault, the accused had acted in self-defence within the scope
of s. 34 (1) of the Criminal Code. Although Paice was acquitted at trial, the Crown appealed to

the Saskatchewan Court of Appeal, which set aside the acquittal and ordered a new trial. Mr. Paice then appealed that decision to the Supreme Court of Canada.
LEGAL QUESTION Is self-defence an argument that is available to either person in a consensual fight?
DECISION Paice’s acquittal was set aside on the sole ground that the trial Judge overlooked the unprovoked assault requirement of s. 34 (1) of the Criminal Code. This section at the time stated that “Everyone 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.”
LEGAL SIGNIFICANCE The decision affirmed that self-defence is not an argument that is available to either person involved in a consensual fight. Self-defence is only available where the accused is an innocent victim who has been assaulted without having provoked the assault.
The new s. 34 of the Criminal Code, however, is different. It states:
“A person is not guilty of an offence if
(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;”

Explain which part of these requirements is a subjective test and which part is an objective test and how they would be applied.