With strong roots in Common Law, self-defence is among the most used legal defence strategies in Canadian criminal law. However, Canadian legislators and courts have long struggled to determine thresholds for using “reasonable” force when a person is in need of self-defence.
Legislators revised self-defence provisions in the Canadian Criminal Code in 2013, a change further clarified in a 2021 Supreme Court of Canada decision. Nonetheless, public opinion remains divided on the issue of whether or not self-defence laws are too permissive or restrictive.
Understanding Your Rights
Self-defence under the law provides people with the legal justification to protect themselves if attacked, or if under the threat of attack – that is, it allows people to legally commit violent acts that would otherwise be illegal.
In some situations, this right extends to protecting property. The legal justification for self-defence in Canada is established under Section 34 of the Criminal Code, while Section 35 covers the legal defence of property.
Before a defendant can claim self-defence during trial, introduced evidence or cross-examination of a Crown witness must indicate that it played a role during the incident. Once this issue is raised, the court will determine whether or not the claim meets an “air of reality” threshold. If the court deems it a viable defence, the Crown is then forced to disprove it beyond a reasonable doubt in order to secure a conviction.
Current Tests for a Defence of Self-Defence
Self-defence arguments during trial typically revolve around subjective interpretations of the “reasonableness” of the defendant’s response in relation to the victim’s actions. At its core, the issue examines whether or not the defendant’s response was proportional to the use or threat of use of force presented by the victim.
Section 34(1) of the Code identifies three elements the court should assess in order to determine the legitimacy of the self-defence claim – if all three elements are met, the defendant is not guilty of the offence.
- Belief that Force or Threats Are Imminent: Section 34(1)(a): “[the defendants] believe on reasonable grounds that force is being used against them or another person or that a threat or force is being made against them or another person.”
- Second Element: Purpose of Force: Section 34(1)(b): “the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force.”
- Third Element: Reasonableness of Circumstances: Section 34(1)(c): “the act committed is reasonable in the circumstances.”
Factors Used to Assess “Reasonableness”
The court must make a subjective determination regarding whether or not a defendant possessed reasonable grounds to believe they were under attack or threatened by attack, and then must determine the reasonableness of the defensive force used.
Section 34(2) details nine factors courts should use to assess reasonableness:
- The type of threat
- The Imminence of the threat and whether or not the defendant could have responded differently,
- The defendant’s overall role in the incident
- Use and/or threat of weapons used by any party,
- Size, age, gender, and physical strength of the parties,
- History of the relationship between parties,
- History of previous interactions or communications between the parties,
- Proportionality of the defendant’s response to the use or threat of force, and
- Whether the defendant’s actions responded to the use or threat of force that they knew was lawful.
Canada’s Supreme Court on Self-Defence
The Supreme Court of Canada recently amended how the 2013 self-defence law should be implemented during trial.
As part of 2021’s R. v. Khill, 2021 SCC 37 decision, the high court overturned a successful self-defence acquittal and ordered a new trial. In this case, the court ruled that the trial judge had failed to advise the jury to consider the defendant’s role in the incident while assessing reasonableness. This allowed the high court to better define how courts should interpret “reasonableness” within the context of the defence.
The decision of the high court was that Section 34(1)(a) should be conceptualized as the “catalyst,” with a focus on the defendant’s state of mind and perception of events leading up to the criminal act. Self-defence could not be in play if the defendant did not have a subjective belief on reasonable grounds that they faced imminent force or threat of force from the victim, as the “question is not what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive”.
The high court characterized Section 34(1)(c) as the accused’s “response.” In considering their response, courts must therefore be “primarily concerned with the reasonableness of the accused’s actions, not their mental state”.
Citizen’s Arrest and the Self-Defence Act
When Canadian legislators revised national self-defence laws, they also clarified the legality of citizens’ arrests. They removed citizen’s arrest provisions within the self-defence provisions of the Code, and addressed them with new provisions in Section 494 of the Criminal Code.
Section 494 allows anyone to arrest without a warrant:
- “a person whom he finds committing an indictable offence; or
- A person who, on reasonable grounds, he believes
- has committed a criminal offence, and
- is escaping from and freshly pursued by persons who have lawful authority to arrest that person.”
Section 494(2) allows property owners and managers to make similar citizens’ arrests if they find “them committing a criminal offence on or in relation to that property. Such arrests need to be made at the time of the offence, or within a reasonable time after it is committed if circumstances prevent the lawful arrest by a law enforcement officer.
Anyone making a citizens’ arrest must hand the suspect over to law enforcement officers as soon as possible. Because a citizens’ arrest usually involves some level of force that would otherwise constitute a crime, the Canadian government warns citizens to be very careful before deciding to make a citizen’s arrest.
What is Reasonable Force in Relation to Self-Defence?
The primary factor every court must consider in self-defence cases is the reasonableness of the force used in the defence.
In order to determine reasonableness, courts must try to determine whether or not the force used in the defence was proportional to the threat faced. If not, then self-defence will not hold up as a defence in court.
Can I Be Charged with Assault or Manslaughter for Defending Myself?
People who defend themselves often find themselves charged with assault, or even murder, due to their actions of self-defence actions.
In such cases, investigating police must make appropriate arrests called for by the law, and leave the case for the court to assess whether or not the defendant’s actions constitute legally as self-defence.
Ultimately, navigating the details of your self-defence claim can be challenging, especially when dealing with Canada’s complicated and extensive legal system – that is why it is imperative to work with a skilled lawyer in order to help you be as prepared as possible.
At Vilkhov Law, our team of professionals is here to support you throughout your case. Reach out to our team today to schedule your consultation and get started in building your self-defence case.