Self-defence is a common defence used by defendants of violent crime charges in Ontario — because the right to defend one’s self and one’s property is a fundamental right of Canadian citizens.
But when is this defence likely to be successful?
The self-defence laws in Canada are complex and often misunderstood. If you’re involved in a violent altercation of any kind, it helps to know what may constitute legal self-defence and what actions overstep the mark…
What is self-defence?
Self-defence is addressed under Section 34 of the Criminal Code:
- A person is not guilty of an offence 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;
- 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
- The act committed is reasonable in the circumstances.
So, a person is permitted to take “reasonable” action to protect themselves or others without the risk of being found guilty of an offence. Crucially, the defensive actions must be proportional to the circumstances — and this is where much of the confusion lies.
For instance, if lethal force is used, self-defence may only be a valid claim if it was the only available option to repel a perceived threat of severe bodily harm or loss of life.
To put this another way, self-defence would not be valid if you shoot and kill an unarmed assailant who punches you in the face.
“Air of reality” test and successful acquittals
To apply any defence successfully, it must first pass an air of reality test. This means that a properly instructed jury acting reasonably could acquit the defendant based on the available evidence.
To ultimately be successful in acquitting a defendant, a criminal defence lawyer must then prove on a balance of probabilities that the elements outlined above in the Criminal Code apply.
Before putting forward a self-defence argument, the following factors (among others) will need to be taken into account:
- The nature of the force or threat
- The extent to which the threat of force was imminent
- Whether other means of defence were available
- Whether a weapon was used
- The age, gender and physical capabilities of the parties involved
- The nature and proportionality of the response to the use or threat of force
- The relationship between the parties involved
Claims of self-defence in attacks on police officers are generally unsuccessful — unless it can be proven that the police officer’s actions were unlawful.
What is the Citizen’s Arrest and the Self-Defence Act?
The Citizen’s Arrest and Self-Defense Act is a Canadian federal law enacted in 2013, empowering citizens to use reasonable force to apprehend individuals whom they believe to have committed a crime.
In most cases, the best course of action is to alert the police and allow them to make the arrest. If that is not feasible in the circumstances, a citizen can make the arrest if they discover a crime being committed or a person fleeing from law enforcement.
To arrest someone for an indictable offence, you must be at the location where the person is committing the crime. Also, in most cases, unless the offence is related to your property, it is illegal to arrest a person after he/she has already committed an indictable offence.
To make an arrest on or concerning your property, you must either own the property, be in lawful possession of it or be authorized by the owner/person in lawful possession of the property to make the arrest. The arrested individual must be handed over to the police immediately after or it may be deemed unlawful and you could face sanctions.
An amendment has been made to the legislation to allow for if a person reasonably believes that they or another person is being threatened with force and consequently takes actions to defend against that force. In such a situation, the person acting in self-defence cannot be held criminally liable for an offence.
What is the Defence of Property law in Ontario?
The defence of property law, as detailed in Section 35 of the Criminal Code, means that you cannot be found guilty of an offence if you take reasonable actions to defend property that you have a reasonable belief of “peaceful possession” of and another individual’s specific actions present a threat to this property (for instance, by trespassing, theft or vandalism).
“Peaceable possession” means that the possession of the property is not likely to lead to a breach of the peace.
To raise a defence of property successfully, your defence lawyer will need to prove the following four requirements on a balance of probabilities:
- There was peaceful possession
- There was a threat to property
- You had a purpose of protecting the property, and
- Your response was reasonable
A claim of defence of property against the police is generally only available if you believe that the police have acted unlawfully.
Can I use a weapon or lethal force to defend myself?
The self-defence laws state that you can defend yourself from force or a threat of force by any reasonable means and the courts will consider many factors in assessing this.
Generally speaking, a weapon may only be used to defend yourself if you are in a situation where you reasonably believe there is a force, or a threat of force, that will be used against you. Remember, the force you use should be reasonable and proportional to the threat faced.
Lethal force may be justified depending on the nature of the threat faced. The use of firearms is generally prohibited for the defence of self or property in Canada.
Remember, you can be charged with assault or manslaughter even if your actions were taken to defend yourself or your property.
If you have been charged with a criminal offence in Ontario where you were acting in self-defence, contact an experienced criminal lawyer at Affordable Defence for a free case evaluation.