What is Self Defence in Canadian Criminal Law?Andrew Captan
Self Defence is a legal defence (known as a justification) to criminal wrongdoing. The law surrounding this defence was amended in 2012, and is now found under section 34 of the Criminal Code of Canada. The current law simplied the old regime, which contained 4 separate sections of the Criminal Code dedicated to the defence (and now it is one).
Under new section 34, persons will not be guilty of an offence if:
- they believe on reasonable grounds that force, or a threat of force, is being used against them or another person;
- the actions that constitute the offence are committed for the purpose of defending or protecting themselves or the other person;
- the act committed is reasonable in the circumstances.
To raise this defence at a criminal trial, an accused simply has to establish (either with their own evidence, or by cross examining Crown witnesses) an “air of reality” to the defence. In plain English, what this means is that there has to be some evidence pointing to the viability of the defence before a Judge or Jury is allowed to legally consider it.
Once an “air of reality” is established, then the burden shifts to the Crown Attorney to disprove the defence beyond a reasonable doubt.
In many cases, it is the third factor that gives rise to legal argument. The Court must consider whether the accused’s actions were “reasonable”, and must consider the following factors:
- 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 capacities of the parties to the incident;
- the nature, duration and history of any relationship between the parties, 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.