Self-defence does not provide carte-blanche to use as much force as a person wants. The concept is often misunderstood, and this misunderstanding can lead to criminal charges. In this article, we take a look at what self-defense actually includes in Canada.
“AS MUCH FORCE AS NECESSARY”
This concept of “as much force as necessary” is crucial to understanding the law surrounding self-defence, and some of the associated challenges. The wording in section 34 of the Criminal Code has recently changed to “reasonable in the circumstances,” but the intent is essentially the same.
It still remains under Canadian criminal law and in the criminal code that people should use no more force than necessary to defend themselves. An act of self-defence is only legal if it is reasonable to perceive that using force is the only option to protect themselves or another person against the threat of force being made. This element of self‑defence considers the accused’s state of mind and the perception of events that led them to act. According to the Supreme Court of Canada, the accused’s actual belief must be held “on reasonable grounds.” The Court considers what a reasonable person with the characteristics and experiences of the accused would do.
The challenge with the concept of reasonable use of force is that there is no list of examples or circumstance that outline precisely what reasonable force entails. Different individuals with different types of training may have different expectations of what constitutes a threat and a reasonable response.
To support reasonable in the circumstances your criminal defence lawyer will attempt to show that given your situation, circumstances, and experience, your actions satisfy self-defense. And that the force used was necessary for protection against the perceived threat.
Under the criminal law the burden is always on the Crown to prove that self-defence does not apply.
To understand the different types of assaults in Canada please refer to the article titled “Different Types of Assaults in Canada – Excluding Sexual Related Offences“.
DEFENCE OF SELF (DEFENCE OF BODY) OF ANOTHER PERSON
Defence of self is most people’s first thought when it comes to self-defence. This is where self-defence is used to protect one’s own body. More common examples of this include protection against physical or sexual assault. Self-defense may also apply in defence of another, often a family member or friend.
Where there is a real or perceived harm the legal defence of self-defence is appropriate, instances that include:
- When a person has reasonable ground for believing that it would prevent an assault causing death or grievous physical harm.
- To prevent rape.
- On reasonable grounds to prevent a kidnapping, abduction, or wrongful confinement attempt.
- In order to prevent throwing or administration of acid that could cause grievous harm.
If it is reasonable in the circumstance, defence of body that results in the death of the assaulter can be legal.
Defence of body only applies when the danger is imminent. For example, in a situation where someone faces repeated abuse from someone, self-defense is applicable at the time of the abuse. However, attacking someone in anticipation of future abuse or as revenge for past abuse is not self-defense, and may result in assault charges. Typically, it would be advised to file a police report and reach out to support services rather than taking matters into your own hands in cases of abuse.
Defence of Property Gone Wrong
The defence of property is more limited than the defence of self. The Supreme Court has ruled that the use of deadly force is not considered reasonable to defend property. The exception is if there is also a threat to life or safety.
For instance, in a home burglary, the perceived threat is higher, so a more significant use of force is acceptable. A burglar who breaks in while people are home has the potential to pose a significant threat. However, if the burglar is retreating then self-defense does not apply.
Defence of property is acceptable if there are reasonable grounds that a person:
- Enters, or entered a property illegally.
- Is about to take, or in the process of taking, property.
- Is in the process of, or about to, damage property.
CROSSING THE LINE: WHEN DOES SELF-DEFENCE BECOME ASSAULT?
Self-defense is a last resort, part of the reason for this is the possibility of defence crossing the line into assault. Assault charges may occur if the Crown can prove that the use, or amount, of force was not based on reasonable grounds in the circumstance.
In Canadian law, you do not have to retreat after successful self-defense. However, if the perceived threat retreats and you continue to attack it may be deemed assault. As well, if the level of force is excessive you can face charges. For example, killing someone who is stealing from your business will likely result in manslaughter charges.
Defence of Property
An example is that of the owner of Toronto grocery store, the Lucky Moose. Although it is legal for the property owner to make a citizen’s arrest if they catch the accused in the act, the protections are limited. The store owner and two employees captured a thief who returned to the store.
Although the thief eventually plead guilty to robbery, the owner and employees faced charges of their own. The robbery had occurred at another time, so the defence of property did not apply. They ended up facing charges for kidnapping, forcible confinement and weapons charges.
HIRE A TORONTO ASSAULT LAWYER
If you or a loved one are facing charges as a result of actions taken in self-defense contact a Toronto assault lawyer. Your lawyer will help lay out your options and prepare a defence to support your self-defence claim.
William Jaksa is a criminal defence lawyer with experience dealing with assault charges and self-defence in Toronto. Contact us today for a consultation.