Many misconceptions surround Self-Defence in Canada, and Parliament tried to clarify the law in 2013 by amending the Canadian Criminal Code. This series of blogs will address five common misconceptions that we see at Schnell Hardy Jones LLP. This series is intended to provide information about Canadian Law. If you believe you were acting in Self-Defence, please contact us for legal advice.
Two defences that are codified in the Canadian Criminal Code are: s.34 Defence of Person, more commonly referred to as Self-Defence, and s.35 Defence of Property. Both of which can be found online here, http://laws-lois.justice.gc.ca/eng/acts/C-46/page-6.html
What is reasonable force?
Misconception #3 – Canadians cannot use force to protect themselves
As stated in a previous blog, s.34 of the Criminal Code permits Canadians to use force to protect themselves even if that means committing assault. Section 265 of the Criminal Code states that every Canadian has the right to not to be physically harmed, or threatened with physical harm or threats of bodily harm except in limited circumstances.
It is the court’s job to determine whether one person assaulted another, and if that assault was permitted under the law. For example, it is assault if you use force to protect yourself. However, if you claim Self-Defence the courts will have to determine whether that is true.
From the court’s point of view, just because someone claims they were acting in Self-Defence does not mean they were, and just because someone is charged with assault does not mean they were not acting in Self-Defence.
For the claim of Self-Defence to succeed, the court will have to be satisfied that
- you had reasonable grounds to believe that force is being used, or will be used against you or another person;
- you were protecting yourself or another person; and
- you used reasonable force.
Since 2013 you are no longer required to try to walk away, but it’s still advisable if you can safely do so. You should not use lethal force just because you feel threatened, nor should you carry around a weapon for the sole purpose of personal protection. However, the courts do not use a strict proportionality test to decide whether the force used was reasonable. Given your circumstances, the court will decide if it was reasonable.
The next blog will discuss the limits of using force to defend your property.
