Cory Wilson is a criminal defence lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and  Turner Valley.

Self-defence is an essential aspect of the Canadian criminal law system. It is a legal concept that allows an individual to use force or violence against an attacker or assailant to protect themselves, their family, or their property. However, the law surrounding self-defence in Canada can be complex, and it is crucial for individuals to understand their rights and obligations in a self-defence situation. In this blog post, we will discuss self-defence law in Canada, including the legal framework, what constitutes self-defence, and the consequences of using force.

Legal Framework

The Canadian legal system recognizes the right of an individual to defend themselves and their property from harm. This right is enshrined in section 34 of the Criminal Code of Canada. Section 34 outlines the circumstances under which an individual may use force in self-defence. According to this section, a person may use force or violence that is reasonable in the circumstances to defend themselves or another person from an unlawful assault. The section also states that the force used must be proportionate to the harm that is threatened or being inflicted.

It is important to note that the use of force is only permitted in self-defence if no other options are available. If an individual can avoid the use of force or violence by retreating or escaping the situation, they are obligated to do so. Failure to retreat when it is reasonable to do so may affect an individual’s claim of self-defence in court.

What Constitutes Self-Defence

To claim self-defence, an individual must satisfy three criteria:

1. Reasonable apprehension of death or bodily harm: The first criterion is that the individual must have had a reasonable apprehension of death or bodily harm. This means that the individual must have believed that they or someone else was in immediate danger of death or bodily harm.
2. No other options available: The second criterion is that the individual must have had no other reasonable options available to them to prevent the harm or danger. This means that the individual must have tried to avoid or escape the situation, but the attacker or assailant persisted.
3. Proportionate force: The third criterion is that the force used must have been proportionate to the harm that was threatened or being inflicted. This means that the individual must have used only as much force as was necessary to protect themselves or someone else.

Consequences of Using Force

If an individual uses force in self-defence, they may still be subject to criminal charges if the force used was excessive or if they did not meet the criteria for self-defence. The onus is on the individual to prove that they acted in self-defence.

If an individual is charged with a criminal offence, they may have a defence of self-defence available to them. In such cases, the individual must prove, on a balance of probabilities, that they acted in self-defence. The court will consider the circumstances of the case and the actions of the individual in determining whether the force used was reasonable and proportionate.

It is also important to note that self-defence is not a defence to all crimes. For example, an individual cannot claim self-defence if they are charged with assault, but their actions were not in response to an unlawful assault.

Defence of Property

In addition to self-defence, individuals in Canada are also permitted to use force to defend their property. However, the use of force in defence of property is subject to stricter limits than self-defence. According to section 40 of the Criminal Code, an individual may use force in defence of property if they:

1. Believe on reasonable grounds that someone is entering or about to enter their property unlawfully; and
2. Believe on reasonable grounds that the use of force is necessary to prevent the entry or remove the person from the property.

It is important to note that the use of force in defence of property is limited to the amount that is necessary to prevent the entry or remove the person from the property. The use of excessive force may result in criminal charges.

Citizen’s Arrest

Citizen’s arrest is another aspect of Canadian law that allows individuals to use force to apprehend someone who has committed an offence or who is believed to have committed an offence. According to section 494 of the Criminal Code, any person may arrest another person without a warrant if they:

1. Find them committing an indictable offence;
2. Believe on reasonable grounds that the person has committed a criminal offence and is escaping from the scene;
3. Believe on reasonable grounds that the person is about to commit a criminal offence; or
4. Are requested by a police officer to assist in making an arrest.

It is important to note that the use of force in a citizen’s arrest is limited to the amount that is necessary to apprehend the person. The individual must also deliver the person to a peace officer as soon as possible.

It is also important to understand that citizens who carry out a citizen’s arrest may be liable for any harm caused to the individual being apprehended. If the individual being apprehended is found not guilty of the offence, the person who carried out the citizen’s arrest may be subject to civil liability.

Stand Your Ground Law

Some jurisdictions in the United States have a “stand your ground” law, which permits individuals to use deadly force in self-defence without a duty to retreat. However, there is no such law in Canada. The Canadian legal system imposes a duty to retreat if it is safe to do so, and the use of force is only permitted if no other options are available.

Proportionality

One of the key principles of self-defence in Canada is proportionality. The force used in self-defence must be proportionate to the harm that is threatened or being inflicted. This means that an individual cannot use deadly force in response to a non-deadly threat, and they cannot use excessive force to defend themselves or their property.

In determining whether the force used was proportionate, the court will consider a variety of factors, including the nature of the threat, the amount of force used, and the available options for avoiding or escaping the situation.

If the force used was found to be disproportionate, the individual may face criminal charges for assault or other offences. It is important to seek legal advice if you are ever faced with a situation where you need to use force in self-defence.

Mistake of Fact

In some cases, an individual may mistakenly believe that they are in immediate danger of harm and use force in self-defence. This is known as a mistake of fact, and it can be a defence to criminal charges if the mistake was reasonable in the circumstances.

For example, if an individual sees someone approaching them with a weapon and believes that they are in danger, they may use force to defend themselves. If it later turns out that the person was not actually armed, the individual may still be able to claim

self-defence if their mistake was reasonable based on the information available to them at the time.

However, it is important to note that a mistake of fact is not a defence if the mistake was based on an error in judgment or perception. In other words, if the individual misinterpreted the situation because of their own biases or assumptions, their mistake would not be considered reasonable.

Intoxication

Intoxication is generally not a defence to criminal charges in Canada, including charges related to self-defence. If an individual becomes intoxicated and uses force in self-defence, they may still be held criminally responsible for their actions.

However, there are some circumstances where intoxication may be considered in determining whether the individual had the necessary intent to commit the offence. For example, if an individual becomes so intoxicated that they are unable to form the intent to use force, they may not be held criminally responsible for their actions.

In some cases, expert testimony may be used to support a claim of self-defence. For example, a forensic expert may be called to testify about the nature and severity of the threat faced by the individual, or a self-defence expert may be called to testify about the reasonableness of the individual’s actions.

Conclusion

Expert testimony can be helpful in demonstrating that the individual acted in a reasonable and proportionate manner. However, it is important to note that the ultimate decision on whether the use of force was justified rests with the court.

Self-defence is a complex area of Canadian law, and it is important to understand the legal principles and limits of self-defence in order to avoid criminal convictions. While individuals are permitted to use force in self-defence, the force used must be proportionate to the threat faced, and it must be used as a last resort.

It is also important to remember that self-defence is not an absolute defence, and the court will consider a variety of factors in determining whether the use of force was justified. If you are ever faced with a situation where you need to use force in self-defence, it is important to seek legal advice to ensure that you understand your legal rights and obligations.

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Cory Wilson is a criminal defence lawyer based in Calgary and serving all of Alberta. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.