What is self-defence?

Self-defence is when a person protects themself, usually using physical force, against a threat. That threat may be when the person is the victim or potential victim of a crime, such as:

• assault or attempted assault
• sexual assault
• robbery
• abduction

However, you do not have to be a victim, or potential victim of a crime to experience threatening behavior. For example, you may believe you are about to be attacked by someone when a physical fight breaks out in a bar and you react striking out first. Or you are approached while in your car by someone you believe has a weapon and, in an attempt to leave the scene, you hit them with your car.

When is self-defence a crime?

In 2012, amendments to the Canadian Criminal Code were made with the enactment of the Citizen’s Arrest and Self-defence Act.

Under the Criminal Code, a person may use force or the threat of force to protect themselves or others, or property, without being guilty of an offence as long as their actions are reasonable under the circumstances.

Defence of Person

Under section 34 (1) of the Criminal Code, 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.

In order for your actions to not be considered a crime, it must be proven that they were limited to what was necessary to protect yourself or someone else. The court determines whether the act committed is reasonable by considering the relevant circumstances of the person, the other parties involved, and the act itself.

The Court will consider several factors, including:

• the nature of the force or threat;
• 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;
• the person’s 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 and the nature of that force or threat;
• any history of interaction or communication between the parties to the incident;
• the nature and proportionality of the person’s response to the use or threat of force; and
• whether the act committed was in response to a use or threat of force that the person knew was lawful.

When is it not a defence when used against a person?

Self-defence is not considered a legal defence when used against another person who is using force and is authorized by law to do so, unless it is believed that the other party is acting unlawfully.

Defence of Property

Under section 35 (1) of the Code, 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.

When is it not a defence when defending property?

When defending property, self-defence is not considered a legal defence:

• 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.
• 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.

Get help

To erase your criminal record, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.

If you acted in self-defence and have been charged with a crime, it is important to hire an experienced criminal defence lawyer as soon as possible. Contact our preferred criminal defence expert, Calvin Barry Criminal Lawyers for a free consultation at 416-938-5858 .

								
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