It is normally a criminal offence to apply force to another person’s body without their consent. However, Canadian law recognizes certain circumstances where an individual is justified in using physical force against another person. One example is where a person uses physical force to defend or protect themselves from actual or threatened force being used against them. While many Canadians have personal beliefs about when, how much, and in what circumstances the use of physical force is justified, Canadian law has very specific rules about when self defence can apply. Self defence can raise many complicated legal issues. If you think self defence applies in your case, you should contact a lawyer to discuss whether you would be successful and how to best advance your defence.
WHEN DOES SELF DEFENCE APPLY?
If you have been accused of assault, it is not enough to simply claim that you were acting in self defence. Canadian law has a narrow test that sets out when self defence can apply. This is found in section 34 of the Criminal Code of Canada. It is not the accused’s responsibility to prove that what he did was in self defence. Rather, it is the Crown prosecutor’s responsibility to prove, beyond a reasonable doubt, that the accused was not acting in self defence.
Self defence requires that:
- The accused person believes, on reasonable grounds, that force was being used or threatened against him;
- The accused’s actions were done for the purpose of defending himself and;
- The accused’s actions were reasonable in the circumstances.
This three-part test is the foundation for self defence and is broken down in detail below.
PART ONE – REASONABLE BELIEF IN THREATENED / ACTUAL FORCE
Did the accused believe, on reasonable grounds, that force was being used or threatened against him or her?
This is the first step of the test. It asks what the accused believed at the time of the incident. This is not a question of whether force was actually being used or threatened against the accused, but instead, whether the person reasonably believed in the circumstances that force was being threatened or used against him or her. Someone may be mistaken about this, but as long as their belief was reasonable in the circumstances known to them at the time, this element may still be established.
This element is concerned with the accused’s state of mind at the time. A judge or jury will consider what both the accused person and the complainant did or didn’t do, how each person acted, and what was said, if anything. Force can mean any form of touching, whether aggressive like a punch or push, or gentle, like unwanted stroking of someone’s chest. It can also be applied directly or indirectly, for example, throwing a frying pan or shoe at someone. Force can also be threatened through words, for example, “I’m going to kill you”. A threat can also be conditional, for instance, “If you see her one more time, you’re a dead man” or can be communicated through other types of conduct. While the use or threat of force does not necessarily have to be immediate, any immediacy (or lack there of) will play into the evaluation of whether the accused’s belief was reasonable in the circumstances.
Although the focus at this stage is on the accused’s state of mind, their belief is not left completely unchecked. The accused’s belief will be compared to what a “reasonable person” would have believed in the same circumstances. Would any other reasonable person, in the circumstances of the accused have thought the same thing as him or her? Would they also have believed that force was being threatened or used against him? Keep in mind, the “reasonable person” is an ordinary, average, person. This is someone who is sober, sane, and can exercise proper judgement and self-control. This is not someone who is overly angry, aggressive, intoxicated, sensitive, excitable, belligerent etc.
PART TWO – ACT DONE FOR PROTECTING OR DEFENDING SELF
Were the actions of the accused done for the purpose of defending or protecting him or herself from that use or threat of force?
Second, the accused’s actions must have been done for protecting or defending themselves from the use or threat of force. Like the first element, this also deals with what was in the mind of the accused at the time. If the accused’s act was not done for defending or protecting him or herself, for example, if a part of their body hit the other person’s by accident, or if they were motivated by revenge or spite, this element of the defence will fail and the accused cannot said to have been acting lawfully in self defence. To determine what the purpose of the accused’s act was, the judge or jury will again consider what each person did or didn’t do, how each person acted, and what was said, if anything.
PART THREE – ACT REASONABLE IN THE CIRCUMSTANCES
Was the accused’s conduct reasonable in the circumstances?
The last part of the test asks whether the accused’s conduct was a reasonable response to the force threatened or used against him. Unlike the other two parts of the test, the question here is not whether the accused believed his or her response was reasonable, but rather, whether what the accused did was a reasonable thing to do in all the circumstances. People are not expected to respond perfectly and there may be a variety of possible responses that would be reasonable. The actions of the accused person will be compared to an ordinary, reasonable person. Again, the “reasonable person” is an ordinary, average, person; someone who is sober, sane, and can exercise proper judgement and self-control.
The judge or jury will consider the following list of factors when deciding whether the act of the accused person was reasonable in the circumstances. This is a list that comes directly from section34(2) of the Criminal Code:
- 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.
The judge or jury can consider any other factors that may be important when determining whether the actions of the accused were a reasonable response in the circumstances. Here, the “reasonable person” that the accused is compared to is a person of the same age, gender, and physical capabilities as the accused. The reasonable person at this stage also has the same history with the complainant as the accused. Neither the reasonable person nor the accused is expected to know exactly how much force is required to achieve the purpose of defending themselves, but again, the use of force has limits and must be reasonable in the circumstances. The law recognizes that there is no one correct reply.
ONUS ON THE CROWN
It is not the job of the accused to prove he was acting in self defence when he did whatever act would normally be considered a crime. Instead, it is the job of the Crown prosecutor to prove, beyond a reasonable doubt, that the accused was not acting in lawful defence or protection of him or herself. This is done if the Crown prosecutor can establish that one of the elements of the self defence test relied on by the accused is absent. Self defence can only successfully be relied on by the accused if all the elements of the test have been met.
For example, let’s say A and B get into a fight at a bar. Both men are drunk and acting belligerently. A and B begin to argue. The argument escalates. B gets out of his chair, aggressively approaches A, screams that he’s going to “knock his teeth out” and then pushes A. In response, A takes out a knife and stabs B in the thigh. B is injured and is taken to hospital. A is charged but claims he was defending himself.
In this example, the first two stages of the test are made out. First, A reasonably believes force is being used against him when B advances towards him aggressively, threatens him, and then applies force to his body by pushing him. B has both threatened and physically assaulted A at this point. Second, A’s action of retrieving his knife and stabbing B in the thigh was done for the purpose of defending himself. However, in this case, the Crown would likely convince the court that A’s actions were not reasonable in the circumstances. The Crown would argue that unlike A, B did not have a weapon or threaten to use a weapon. Moreover, A’s response of stabbing B was disproportionate to simply being threatened and pushed. While the law does not demand there be one correct response, the Crown in this case would likely be successful in disproving, beyond a reasonable doubt, that the accused’s actions were reasonable in the circumstances.
Although it is the job of the Crown prosecutor to establish that at least one element of the test is absent, the accused does have the responsibility of providing the Court with enough evidence to put the defence into play. This is usually done by the accused taking the stand and testifying in their own defence. Although an accused person has the right to silence and never has to testify, it is common when advancing a self defence argument for the accused to testify to meet this basic threshold. The decision to testify and the impact it may have on your self defence argument can be complicated and it’s crucial that you talk to a lawyer when making these types of decisions about your case.
WHEN DOES SELF DEFENCE NOT APPLY
There are certain cases where an accused person cannot argue self defence. The Criminal Code does not allow people to claim self defence in cases involving resisting arrest or other physical encounters with law enforcement. The Criminal Code authorizes law enforcement to use as much force as necessary to effect a lawful arrest. If you believe that the police have used excessive force, you need to talk to a lawyer. This can engage many complicated legal arguments and you should seek legal advice on what options you have in your case. Self defence will only apply in cases involving law enforcement if the accused person believes, on reasonable grounds, that the police are are acting unlawfully. Again, this is a complex area of the law and requires legal advice.
Intoxication may also impact a person’s ability to rely on self defence. Keep in mind that the actions of the accused are compared to a reasonable person. The reasonable person is sober and sane. A person’s level of intoxication is not a legal excuse or justification for why they acted the way they did. Similarly, a mistake that is caused by poor judgement or excessive intoxication is not a mistake based on reasonable grounds.
HIRING A LAWYER
While most people have a general idea of what self defence is, Canadian law has set very specific boundaries on when it can apply. Although it may seem straightforward, there are many factors that can impact the success of a self defence argument at trial. If you have a case that turns on self defence, it is important that you talk to a lawyer about how to best conduct your defence. Contact a lawyer at Pringle Chivers Sparks Teskey for a free consultation.