Unlike defences of excuse, such as the defence of “duress”, self defence is a defence of justification. The Criminal Code of Canada recognizes that a person may be justified to intentionally use force against another.
Self defence may be force applied against another in defence of self, a third-party or property. To rely on self defence, the force used must be no more than is reasonably necessary in the circumstances.
In R. v. Deegan, 1979 ABCA 198 the Court of Appeal reminds us that the onus is on the Crown to negative each defence (including self defence) that reasonably arises in the evidence. By operation of our criminal law, an accused need only raise a reasonable doubt that he or she acted with legal justification. Deegan also reminds us that there is no duty of retreat. Finally, the law has also long recognized that while the degree of force used in self defence must be reasonable in the circumstances, there is no need for the defender to measure the nicety of his or her blow.
Self defence applies most often to allegations of violence, such as assault, homicide and perhaps even uttering death threats.
criminal code of canada
On June 28th, 2012 the Citizen’s Arrest and Self Defence Act came into force. This legislation overhauled the previous self defence regime by unifying a number of arguably confusing and somewhat esoteric sections of the Criminal Code. Sections 34-37 were repealed and replaced as follows:
Defence of Person
34(1) 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;
(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; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person's response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Defence of Property
35 (1) A person is not guilty of an offence if
(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;
(b) they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered the property without being entitled by law to do so,
(ii) is about to take the property, is doing so or has just done so, or
(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of
(i) preventing the other person from entering the property, or removing that person from the property, or
(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances.
(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.
(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Though there are many nuances to the legal application of self defence, the concept of reasonable grounds is critical to whether one might be justified in using force. Reasonable grounds has been discussed in a number of contexts, such as for example, reasonable grounds to search and reasonable grounds for arrest. In short, reasonable grounds is both subjective and objective. Subjectively, a person acting in self defence must believe that force is being used against them; objectively, there should be evidence to support their subjective belief. The objective component ensures that reasonable persons, standing in the shoes of the purported defender, can evaluate the defensive response.
Of course, even if a person has reasonable grounds to act in self defence, the defensive action must also be reasonable in the circumstances. That is to say, even if one is justified in defending oneself, it is important that the defensive act is reasonably proportionate to the force or threat.
Section 34(2) outlines some of the criteria that a court must consider in determining whether the defensive response was reasonable. For instance, the nature of the force or threat is important. Using a baseball bat to critically subdue a person using threatening language may not be reasonable. I use the word "may" because there are many factors to consider when assessing reasonableness.
For the purpose of adding some levity to this discussion I have included a YouTube video titled 'How to Kung Fu Bad People". The video illustrates a circumstance where self defence may no longer be justified.
How to Kung Fu Bad People
In “How to Kung Fu Bad People” "the Man" comically illustrates what it means to use more force than is reasonably necessary in acting in self defence. The Man tells us that he is 28 years of age, but has over 40 years of fighting experience in mixed martial arts. He offers techniques in how to" beat up bullies or anybody else you want to beat up".
How to kung fu bad people and self defence
As a starting point, self defence can only be used when one has reasonable grounds to be believe that force will be used against them or that a threat of force is being made. It is not a justification to beat-up anybody who you “want to beat up”.
Secondly, the Man outlines his self defence paradigm: (1) defend, (2) attack and (3) run. In Canadian criminal law, self defence only allows a person to “defend” themselves; not to attack when self defence is no longer necessary. This means that once the “defence” has been achieved, there is no legal justification to continue the attack. Accordingly, when the Man pushes his assailant to the ground, waits to hear police sirens and when none are heard, continues the assault, he comically demonstrates force that has gone to far. Even if The Man started acting in self defence, once he kicked his assailant after he or she was subdued on the ground, he is arguably no longer acting in self defence. Again, I say "arguably" because there are many factors to assessing reasonableness beyond whether the assailant is temporally subdued. For example, there might be a history between the parties that necessitates an elevated defensive response.
The takeaway is, to successfully justify the use of self defence, one must have reasonable grounds to believe that force will be used or that there is a threat of force and must use no more force than what is necessary to repel the attack. Gong too far could leave one at risk of criminal conviction.
By way of final comment, the principle of self defence applies to more than just the protection of oneself or another; it also applies to property. A recent example involving the defence of property is the case of Eddie Maurice -- a rancher who shot at a trespasser who appeared to be preparing to take his property.
In our criminal courts, self defence is considered on a case-by-case basis. It requires a careful analysis of all of the evidence, including what was in the mind of the accused at the time when he or she was defending him or herself. Unfortunately, it seems that in Alberta, self defence can create a perilous situation ordinary law abiding Canadians; for in many cases, the police charge the defender, leaving the criminal justice system to sort out whether the use of force was justified or not. Many people successfully defend their case, some do not. In all of these cases, the self defender is often put to the emotional and financial hardship of self defending in court. This means that sometimes real victims are re-victimized by a criminal justice system that prefers to offload the responsibility of decision-making onto judges. Though the criminal charges against Eddie Maurice were ultimately withdrawn, he was still forced to a protracted process involving many court appearances.
If you have been charged with assault, homicide or any other crime of violence, consider consulting with Calgary criminal lawyer, David Chow. David is an experienced Calgary defence lawyer who routinely secures verdicts of not guilty in cases involving crimes of violence. David is a Calgary domestic assault lawyer and one of a relative few Calgary criminal lawyers who has secured "not guilty" verdicts in murder, attempted murder and manslaughter. Call 403.452.8018 for a free telephone consultation.