Can Self-Defence Be Denied to a Person who Breaks the Law or Creates the Danger in the First Place?

PUBLISHED ON July 12, 2022

Until recently, the law of self-defence in Canada was thoroughly confusing. Several sections of the Criminal Code addressed the issue of self-defence, and it was often the case that more than one of those sections was applicable to a given fact situation. Now, the self-defence provisions are codified in section 34 of the Criminal Code. Despite this, there have been questions about whether the accused can lawfully defend themselves when they are the ones that created the dangerous situation in the first place.  

The following analysis is for informational purposes only. For legal advice relating to your matter, please contact Brian Ross Criminal Lawyer in Toronto to schedule a consultation.

Section 34 of the Criminal Code is reproduced here:  

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.

Factors

34(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.

No defence

34(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.

How do these provisions factor into a case where the accused causes a dangerous situation? In 2021, the Supreme Court of Canada addressed the issue in R. v. Khill and last week, they were addressed again by the Ontario Court of Appeal in R. v. Sparks-MacKinnon. In Khill, the Court noted that where the accused played a central role in creating a highly risky scenario, it was incumbent upon the trial judge to consider whether the accused’s actions eliminated “all other means to respond with anything less than deadly force.” The Court noted that the judge must consider the accused’s role throughout the incident to the extent it informs the reasonableness of the act underlying the charge. In Sparks-MacKinnon, the Ontario Court of Appeal held that this standard of reasonableness is “overarching in nature and must be judged holistically and objectively” and that reasonableness “includes concepts like provocation and unlawfulness but is not limited to or circumscribed by them. While aggressive, unlawful, or provocative conduct remains highly probative and can support a finding of unreasonableness under the new regime, it is open to a trier of fact to find otherwise”. The judge in Sparks-MacKinnon found that the accused bore “significant responsibility for bringing about the circumstances that led to his need to defend himself” but could not conclude beyond a reasonable doubt that his shooting of the deceased was unreasonable.  

In conclusion, self-defence is not denied to a person who breaks the law or conducts themselves in a dangerous manner.  The fact that the accused creates the danger or provokes the victim, however, is relevant and will be examined in the “reasonableness” analysis.

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Brian Ross is a founding partner at Canada’s largest criminal Law firm, Rusonik, O’Connor, Robbins, Ross & Angelini, LLP. Prior to founding this firm, Brian was a partner at Pinkofskys, a leading law firm famous for its vigorous defence of its clients.

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