Self-defence is one of the most well-known legal defences used in criminal law. While self-defence principles evolved out of Common Law, Canadian laws covering the defence have proven historically contentious. Until self-defence provisions were revised in 2013, many people believed that the Criminal Code made it too difficult for defendants to raise a viable claim of self-defence in criminal cases.
Many people now believe that Canadian self-defence laws provide too much potential cover for defendants. The Canadian Supreme Court recently weighed in on the issue but rendered a decision that some pundits felt failed to address what they consider an overly permissive interpretation of the Code and legal precedence of what exactly constitutes self-defence in Canada.
As a regular reader of our blog, you are undoubtedly aware that our Greater Toronto Area lawyers have included a monthly posting focused on a specific legal defence in Canadian law. We started this series with a blog about the “ abandonment ” defence in December and most recently added a blog detailing the “ necessity ” defence.
We trust that this article will help clear up any confusion you might have about Canadian self-defence law, but please note that the information in this blog should not be construed as “legal advice,” as it is strictly for educational purposes. Anyone facing criminal charges should always seek the services of an experienced criminal defence lawyer to ensure the best possible outcome. Mass Tsang lawyers have successfully defended thousands of criminal cases and can help you mount an effective criminal defence if needed.
The concept of self-defence under the law provides people with the right to protect themselves if attacked or under threat of attack. That is, it justifies actions that would otherwise be deemed liable or criminal prosecution and conviction. In some cases, this right extends to protecting one’s property. Because an act of self-defence can result in harm to the attacker, people who defend themselves often find themselves charged with assault or even murder. This may seem unfair, as the defendant was merely trying to protect themself. However, investigating police must lay any charges called for by the law and let the courts determine whether the defendant’s actions constitute self-defence.
Self-Defence is covered under Section 34 of Canada’s Criminal Code, while Section 35 covers the legal defence of one’s property. Section 34(1) states that a person is innocent of committing an offence if:
The keyword in these provisions is “reasonable,” because the courts first have to decide whether a defendant had reasonable grounds to believe that they were under attack or threat of attack and then determine the reasonableness of the defensive response. Section 34(2) details nine factors courts should assess in gauging reasonableness but notes that courts can assess other factors as needed. Listed factors include:
At trial, a defendant can raise self-defence with evidence or cross-examination of Crown witnesses that indicates that it played a role in the incident. A self-defence claim must have an “air of reality” to be legally heard as a defence before a judge or jury. Once deemed a viable defence, the onus is on the Crown to dispute self-defence beyond a reasonable doubt. Arguments at trial tend to revolve around subjective interpretations of “reasonableness” in context with the victim’s actions and defendant’s response, and, in particular, whether the response was proportional to the use or threat of use of force.
The Supreme Court of Canada provided its first guidance on the 2013 revised self-defence law last year. In R. v. Khill, 2021 SCC 37 , the high court overturned a successful self-defence acquittal on second-degree murder charges and ordered a new trial. Peter Khill had been charged with the murder after he shot a man who was allegedly trying to steal his truck from his driveway. During the trial, Khill argued that he opened fire on the victim because he thought he saw a gun in his hand, with the perceived threat being justification for self-defence. The jury agreed with the defendant’s self-defence argument, but upon appeal, both the Canadian Court of Appeal and Supreme Court overturned the acquittal and ordered a new trial. In both cases, the courts held that the trial judge erred by failing to advise the jury to consider the defendant’s role in the incident in assessing reasonableness.
In providing guidance on how to interpret the new self-defence law, the high court said it should be “conceptualized” in three parts: catalyst, 34(1)(a); motive 34(1)(b); and response 34(1)(c). The catalyst concerns the defendant’s state of mind and perception of the events leading up to the criminal act. Absent a subjective belief on reasonable grounds that the defendant was facing force or threat of force, “the defence is unavailable.” The court elaborated on this by noting that the “question is not what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive.”
The high court characterized consideration of motive as “a subjective inquiry which goes to the root of self-defence” — absent defensive or protective purpose, “the rationale for the defence disappears.”
Conceptualization of the third part, response, should be “primarily concerned with the reasonableness of the accused’s actions, not their mental state,” advised the high court. The Code’s Section 34(2) factors guiding consideration of the reasonableness of the response should not necessarily be addressed individually. Instead, the relevance of each factor should help guide the answer to the “ultimate question” of whether the response was reasonable. While Section 34(2) provides flexibility by not limiting factors that can be considered, the omission of the defendant’s role in the incident represented a serious legal error that justified ordering a new trial.
Mass Tsang’s criminal trial defence lawyers have extensive experience raising self-defence at trial. If you or a loved one have been charged in the Greater Toronto Area with a crime committed due to protection of self or property to mount the necessity defence, contact us today for a free consultation.
