Assault or self-defence?
When it comes to the law relating to a charge of assault, one of the common areas of confusion is the concept of self-defence.
Conflicts arise everywhere; in relationships, from bar fights, road rage, or between neighbours. Conflicts can also quickly turn physical. Once this happens, legal questions around the law of assault and self-defence come to the forefront.
The law on self-defence remains a grey area: Are you allowed to hit back? Should you retreat from the confrontation? Can you use a nearby object as a weapon, if needed? Can you shoot or stab an intruder in your home?
This article will dispel some of the misconceptions around the concept of self-defence under Canadian law.
Why did the police charge me if I was assaulted first and just defended myself?
If you have been charged, this means that police have concluded – rightly or wrongly – that something about your incident took it outside the parameters of self-defence.
Self-defence does not apply to every conflict or assault; it is not a protective shield for every time you are involved in a physical altercation or provoked to engage in one. Perhaps surprisingly, it does not even cover all situations in which you may have been assaulted first.
There is a strict legal threshold for what constitutes self-defence.
What is the legal threshold for self-defence?
Self-defence arises under section 34 of the Criminal Code, which was simplified and strengthened in 2012 by legislation called the Citizen’s Arrest and Self-defence Act.
The law in this area is very nuanced. There are certain requirements that must be met for you to properly rely on self-defence.
These requirements are:
- You believe on reasonable grounds that force is being used or threatened to be used against you or another person;
- You are committing the act (that would otherwise be an offence) for the purpose of defending or protecting yourself or the other person from that use or threat of force; and
- The act you committed is reasonable in the circumstances.
What acts are considered by a court to be reasonable in the circumstances will vary. Each situation is assessed by the court against a standard that combines both subjective elements (i.e. what you honestly believed) and objective ones (i.e. what a “reasonable person” would have believed in the same situation).
Every one of the above criteria must be met before your protective actions can constitute self-defence.
Are there limits to how far I can go in defending myself?
Yes. The court will rely on several factors to determine whether your actions were reasonable in the circumstance. Importantly, to be considered reasonable, the court must find that the force you used was no more than necessary to enable you to defend yourself.
This will depend on the circumstances of the altercation, including what led up to it. To assess reasonableness, the court will evaluate your actions in the context of the specific scenario.
This involves considering all the following factors:
- The nature of the force or threat you were facing.
- 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.
- Your role in the incident.
- Whether any party to the incident used or threatened to use a weapon.
- The size, age, gender and physical capabilities of the parties to the incident.
- The nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat of force, as well as the nature of it.
- Any history of interaction or communication between those involved in the incident.
- The nature and proportionality of your response to the use or threat of force.
Whether the act committed was in response to a use or threat of force that you knew was lawful.
What are some of the scenarios that self-defence can apply to?
There are many misconceptions around the scope of self-defence, and how it can affect different scenarios. Here are some brief answers to some of the more common questions:
- Defending others. In certain scenarios, self-defence may apply if you are acting in defence of a third person, provided you reasonably perceive a threat against him or her, and you act with a defensive purpose. You will still be required to meet the legal test for self-defence, and the court will evaluate the specific scenario to determine if self-defence applies.
- Using weapons. The presence or use of weapons, by either you or your attacker, is simply one of the many factors that go into a court’s determination of what is an acceptable defensive response to the attack you faced.
- Against police. In the case of police action against you, self-defence is only available if you reasonably believe that the police are acting unlawfully against you, for example by using excessive force. Again, you will still be required to meet the legal test for self-defence, and the court will evaluate the specific scenario to determine if self-defence applies.
Lethal force. The court’s assessment of what is “reasonable in the circumstances” will depend on many factors. In extreme circumstances, the use of lethal force against another person can be justified if it meets the legal test.
The law in this area is very complex. It is next to impossible to try to navigate this area of the law without having an experienced criminal lawyer examine your unique fact scenario. I have encountered several situations where clients have been charged by police, wrongly, where self-defence clearly applied.
Are there situations where acting in self-defence can go too far?
Yes. The fact that you were assaulted first, or that you were provoked by someone into engaging in a physical altercation, does not necessarily mean that you can respond with violence in return.
Even where your right to protect yourself from an assault is validly invoked, the law does not allow the use of more force than is necessary to protect against the assault, nor does the law allow the use of the defence to exact revenge or punishment, or to “teach the other person a lesson.”
For example, if you are defending yourself against someone who has given you a minor shove, and you retaliate by seriously assaulting, injuring, maiming, or fatally wounding the other person, then the police may charge you with a criminal offence such as assault in return.
It is also important to emphasize that to legitimately rely on self-defence, you must provide some evidence that you were motivated by a genuinely defensive purpose, rather than some other purpose. For example, if you steal something from a convenience store, and the shopkeeper tries to make a citizen’s arrest to stop you, your assault of the shopkeeper when trying to escape will not be considered self-defence.In short, self-defence arises only in certain situations, and your conduct always remains subject to the court’s assessment of what was reasonable in the circumstances.
What about my right to defend my property?
In addition to self-defence, the Criminal Code also contains section 35, which addresses your legal right to defend your property.
In order to avail yourself of this right, the court must find the following criteria to be present:
- You believe on reasonable grounds that you are in “peaceable possession” of property, or you are acting under the authority of, or lawfully assisting, a person who is in peaceable possession of the property;
- Another person is or is about to enter the property without being entitled to do so, has taken the property, or has damaged or destroyed the property;
- There was a defensive purpose associated with your actions; and
- The act you committed was reasonable in the circumstances.
There are certain circumstances where this defence will not apply to you. For example, you can not take advantage of the defence if you do not have a claim to the property and the other person in the altercation is entitled to its possession by law. You also cannot claim this right if the other person is doing something required or authorized by law in the administration or enforcement of law, unless certain conditions apply.
Unlike the test for self-defence, there are no specified list of factors that a court must consider when assessing whether your conduct was reasonable in the circumstances. Each situation is still assessed by the court on a case-by-case basis.
Call me, Susan Karpa, an experienced criminal defence lawyer.
The determination of whether you have a valid self-defence claim will be a complicated question of law, assessed against the backdrop of your unique facts. If you have been charged and you think you may have a claim of self-defence, call me for a free consultation.
I have extensive experience as both a crown and defence lawyer, which gives me a distinct skillset to analyze your case and to work towards achieving the best possible outcome for you.