Self-Defence Laws in Canada

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:

  1. “a person whom he finds committing an indictable offence; or
  2. A person who, on reasonable grounds, he believes
  1. has committed a criminal offence, and
  2. 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.

By |2023-08-11T10:32:50+00:00June 26th, 2023|Criminal Defence|

5/5 - (2 votes)

Criminal Lawyers Association
Toronnto Lawyers Association
Law Society of Ontario
Criminal Lawyers Association
Toronnto Lawyers Association
Law Society of Ontario
Excellent5.0 Based on 120 reviews fromBrandon ABrandon A ★★★★★ Igor was fantastic to work with. He was always very quick to respond and answered any questions I had at any time during the process. I'm so impressed for his amazing and efficient work - he was able to have any charges against me dropped. I highly recommend Igor to anybody that's currently facing legal trouble. He truly exceeded my expectations and I'm so grateful for everything. Thank you Igor!Anoop RAnoop R ★★★★★ One of the best law firms in town! Highly recommended.ARRARR ★★★★★ I was falsely accused and charged with a serious offence. All it took was just one phone call from the complainant. As an immigrant, it was a nightmare. Fortunately Igor was the first person whom I contacted and I knew he was the one and I retained him. Beware of the lawyers who try to scare you, make you feel insecure. From the first phone call, he never made me feel insecure. He was confident that he can get the work done. Igor and Daniel promptly attended all my court dates. It took a while to achieve the resolution and finally my case was unconditionally withdrawn. I can't thank him enough. As Igor is a busy person, I was getting updates regularly from Daniel. I would give six stars to Daniel. Igor should never let him go. I would definitely recommend this law firm. You might sometimes feel that Igor is late in responding, but he'll be putting all his efforts behind the scene. Just have faith in him. I wish Igor and Daniel all the best.Maria AgasMaria Agas ★★★★★ I was very impressed with his professionalism, swift responses and attention to detail. He was proactive and always communicated next steps. I’m so happy we came across Igor and his team. Igor is amazing and wonderful lawyer.Cindy LiCindy Li ★★★★★ I cannot express my gratitude enough for the exceptional legal representation provided by Igor. Facing wrongful accusations was a harrowing experience, but Igor's expertise and dedication swiftly turned the tide in my favor. He navigated the complexities of the case with professionalism, demonstrating remarkable intelligence and a deep understanding of the legal system. Thanks to his efforts, the charges were withdrawn in a timely manner, allowing me to move forward with my life. Igor is not just a good lawyer; he is an outstanding advocate for his clients. I wholeheartedly recommend his services to anyone in need of top-notch legal assistance.George ArellanoGeorge Arellano ★★★★★ Mr. Vilkhov got my charges withdrawn today after a very stressful time in my life. I hired him because of his reviews and I am not surprised that I got this result. I appreciate him and his team. Igor literally dedicates his entire life for his clients.Latch RamoutarLatch Ramoutar ★★★★★ I am sitting here at 10 Armoury street after my charges were just withdrawn. I cannot thank Igor enough for what he has done for me. This was supposed to be a trial where I was facing a ten year jail sentence. Somehow Igor got my charges dropped. This man is the lawyer you need, hands down. Also a very nice person.Emad MEmad M ★★★★★ Do not blink! Go with him.I know for stressful this process might be an how awful law system might be treating you, also how difficult it might be to trust someone with your “life”.Igor knows what he is doing and he saved my partner and I from false accusations of a jealous individual!He didn’t over charge, he didn’t hold back on any help a lawyer could possibly provide.This man is the best saviour one can ask for in these situations.Christa DuchenoChrista Ducheno ★★★★★ No kidding, if you need an attorney and You want the Best lawyer to defend you and your rights in the legal system I’d definitely recommend you call Igor Vilkhov.I am completely and gratefully satisfied with His professional guidance, knowledge of the complex legal system and most of all for saving my life. I give Igor and his Team my hands heart shout out Thank You for your dedication, I couldn’t have gotten through it without Y’all.Stephanie SchembriStephanie Schembri ★★★★★ Mr.Vilkhov thank you for keeping our family together we are forever gratefulAndreyAndrey ★★★★★ Highly recommend. Fast and reasonableRajveer SinghRajveer Singh ★★★★★ WaheguruAlyssa TolentinoAlyssa Tolentino ★★★★★ Igor is an incredibly professional, yet empathetic lawyer — I retained his services for charges laid against someone close to me, and would make that decision time and time again! He pays attention to every detail, and will be by your side to get the best outcome possible. You’re in good hands with him.Kathryn GilfoyKathryn Gilfoy ★★★★★ john la magnajohn la magna ★★★★★ I had a great experience with Vilkhov Law. Igor was professional, efficient, and made my very stressful first endeavour into needing legal council as much of a breeze as it could have been.He was also very patient with me as a first time offender with way too many questions.I highly recommended Igor, and his team at Vilkhov Law!Norbert WysockiNorbert Wysocki ★★★★★ Igor and his team provided excellent service in very delicate and emotional case. They were extremely supporting and knowledgeable. Thank you for everything you have done!Jason WorthJason Worth ★★★★★ Words cannot describe what Igor has done for me. Igor is the most skilled and amazing attorney I have ever met in my entire life. I had a long list of charges (some that carried some serious penitentiary time) and worked some serious magic with countless hours behind the scenes for me to make just 1 appearance and have ALL THE CHARGES WITHDRAWN and a peace bond put in place. The timeframe for it was amazing as well he took care of me and this situation in only 15 months! (we all know the justice system does not work that fast normally!) If you want a very highly skilled, passionate, available(Igor would take calls and messages even after normal hours to fill me in!), experienced and dedicated attorney that will work tirelssly with you and for you to get you the absolute best results then Igor is your man! 5 stars does not do this man justice he deserves 100 stars!N -N - ★★★★★ Great lawyer. Knowledgeable and helpful. 10/10 would recommend :)GLORIS SPENCEGLORIS SPENCE ★★★★★ Working with Igor and his team during a very unpleasant situation has been a blessing. Even though the legal process was a lengthy one, they were there to answer the questions and concerns we had.Thankfully, it's all over and settled and hopefully we'll not need his services again, but it is reassuring to know that if the situation should every arise where legal counsel is needed, Vilkhov Law Professional will be there in my corner.Thank you.Scott K.Scott K. ★★★★★ I would like to give Igor 5 stars for handling my serious case for the last 11 months of my life. In December 2022, I was wrongfully accused of 2 serious charges under my name however, Igor took care of it from the beginning and finally all of those wrongful charges are withdrawn and now I feel much better and at ease. I am very glad that Igor could help me throughout the hard process and bring out the best result possible! Also, what I want to pinpoint out for the most is that he picks up the call by himself and you get to contact directly with him whenever you have questions or want updates throughout the process. I know that it could be tiring for lawyers who have other clients at the moment but Igor always keep a close contact with his client and I was always able to talk to him directly when I needed for the last 11 months. At last, I wish all the best for Igor and hope that god blesses throughout his career and may he be able to offer his professionalism to help other people in need. Thank you Igor :)SAID ALISAID ALI ★★★★★ Igor is an exceptional lawyer! I am very thankful for his excellent professional legal advice and assistance, he was able to drop my S.A charges. Thank you Igor for everything you've done, I really appreciate your services.M AlyM Aly ★★★★★ I was charged with SA, which rarely ever get dropped and generally always go to trial. Igor Vilkhov was able to get my charges fully withdrawn with no consequences or harm to me.Every lawyer I spoke with quoted me astronomical fees and explained how they would have to jump through hoops and perform ‘legal gymnastics’ to help me. Igor was the only lawyer who gave me a fair and realistic fee structure. He walked me through what the process would look like and gave realistic expectations. It was clear from the start he knew what he was doing and that his experience was significant. Throughout the process he provided regular updates and was always reachable. If you’re charged, I highly recommend at least speaking with Igor before making a decision on an attorney.Melissa HinrichsenMelissa Hinrichsen ★★★★★ Igor was amazing to deal with. His response time was amazing compared to others. He knew what I needed and got the job done. I highly recommend to everyone.NicoleNicole ★★★★★ Very kind and helpfulDevere SDevere S ★★★★★ Mr.Vilkhov is a professional and very good lawyer, goes through everyrhing to make sure it gets dealt with properly, He replies fast if you have questions or anything as well, along with his staff Jessica she was a big help as well.js_loader

CONTACT US

“Caring, honest, and highly knowledgeable.”

Contact Igor for a Free Consultation!

Please contact us online for a free consultation.
Go to Top