I Was Acting in Self-defence – So Why Am I Charged

PUBLISHED ON April 15, 2024

The law surrounding self-defence in Canada is complex. What follows is a brief introduction to this special defence. This is not legal advice. This is for informational purposes only. Should you require legal advice, please contact Brian Ross at (416) 658-5855.

The Law: Section 34 of the Criminal Code

Pursuant to section 34 of the Criminal Code, a person is permitted to use force against another person if 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). However, the force that the person uses must be used for the purpose of defending or protecting themselves (or the other person). Further, the force used must be reasonable in the circumstances. Specifically, section 34 of the Criminal Code reads as follows:

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 the use or threat of force and

(c) the act committed is reasonable in the circumstances.

The reasonable belief requirement:

The first requirement for self-defence to be lawful is a reasonable belief that force, or a threat of force, is being levelled against you. Our law recognizes that the instinct for survival demands that a person who is under threat of force can act in order to stop/prevent it. However, the belief that force will be used against you must be reasonable. One cannot simply assault another person with no basis to believe the other person was about to use force. 

The for-purpose requirement:

Any force used by an accused person must have been used solely to defend against another person’s force.

The act must be a reasonable requirement:

This third requirement means that the act of self-defence must itself be reasonable – reasonable based on the facts known at the time. To determine this, one looks at whether a reasonable person could have acted in the same way in repelling the attack. This isn’t an exercise in seeing whether there were other reasonable things that a person might have done – in hindsight, with the benefit of careful consideration – the question is whether it was reasonable to meet the force/threat of force in the way that was done here. 

Further, anyone who defends or protects themselves cannot be expected to know exactly how to respond to or deal with the situation at hand or how much force to use to achieve their purpose. What is reasonable may include several alternatives. The issue is whether what the accused did was reasonable in the circumstances known to them. 

In determining what is reasonable, the Court will consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors enumerated in section 34(2) of the Criminal Code.

(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.

Onus

An accused person is not required to prove that they were acting in self-defence.  On the contrary, the prosecutor is required to disprove self-defence – beyond a reasonable doubt. 

Conclusion

Again, this article provides a brief overview of the law of self-defence in Canada. For advice on your case, contact a criminal defence lawyer in Toronto today. To contact Brian Ross, call (416) 658-5855 or email: [email protected].

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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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