Most people, by nature, are not violent. However, depending on the circumstances, even the calmest, easy-going person may choose to use violence to protect himself or herself against a violent aggressor. For instance, suppose you are asleep in your bed, minding your own business when you are awakened by a noise downstairs. You go to investigate and realize someone has broken into your house – and they have a weapon. Your children are asleep upstairs, and you fear for their safety as well as your own, so you grab a club from your golf bag and tell the robber to leave. Instead, they lunge at you with a knife. To defend yourself from bodily harm, you hit them with the golf club and they are knocked unconscious.
This is a hypothetical scenario, but it could just as easily be a real one. If it is, what happens if, in the course of protecting yourself, your family, or your home, your attacker is injured or killed? Could you be charged with a crime? The answer is yes. However, self-defence may be a reasonable claim and one you can use to successfully defend yourself in court.
Under Canadian law, there are specific factors that must be met for a self-defence claim to be effective. Canada’s self-defence laws are complex and convincing the court that your claim is valid may not be easy, but it can be done with the help of an experienced Edmonton criminal defence lawyer. The Edmonton criminal defence law firm of Chadi & Company has successfully defended clients against criminal charges using the claim of self-defence.
If you or a loved one are facing criminal charges in a situation where you simply acted in self-defence – including the defence of yourself, a loved one, or your property – it is imperative that you speak with a criminal defence lawyer as soon as possible. In the meantime, read on to learn more about self-defence rights in Canada.
What is self-defence?
Self-defence is when a person acts – typically using physical force – in a manner intended to protect himself or herself against a threat. The threat may be real or perceived and may be the result of the person being on the receiving end of threatening behaviour. That threatening behaviour may be part of a crime, such as:
- Abduction or kidnapping
- Assault or attempted assault
- Breaking and entering
- Rape, attempted rape, or sexual assault
- Robbery
- Trespassing
It is worth noting, however, that you do not have to be the victim, or the potential victim, of a crime for threatening behavior to exist. Perhaps you are out having a few drinks when someone takes a dislike to something you have said or done and asks you to step outside. What may begin as a minor disagreement or bar brawl due to one too many drinks, can quickly turn serious if someone gets hit the wrong way or hits their head on something.
Another possible scenario is that you perceive danger and react in an effort to protect yourself. For instance, say that someone approaches your vehicle and you believe they have a weapon – and bad intentions – so you attempt to flee but in doing so, hit them with your car. You perceived a threat and acted in self-defence, but will the court agree? They may. Self-defence is a fact-specific inquiry, and the court will consider the circumstances in which the incident occurred. It is crucial that you have a knowledgeable Edmonton criminal defence lawyer on your side who is experienced in handling self-defence claims.
When is self-defence justified?
Canadian law does consider self-defence a reasonable defence when accused of a crime. In fact, the Citizen’s Arrest and Self-defence Act of 2012 updated and clarified certain aspects of the Criminal Code as it pertains to self-defence.
The Citizen’s Arrest and Self-defence Act replaces sections 34 to 42 of the Criminal Code and states that a person is not considered guilty of a violent offence if the following criteria are met:
- They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person
- The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force
- The act committed is reasonable in the circumstances
A defendant must meet all the above conditions for their self-defence claim to be considered justified.
In addition to considering the defendant’s state of mind at the time of the act, the court also takes all the circumstances related to the act and everyone involved into consideration, to determine whether the act is reasonable in the circumstances. According to the Criminal Code, this includes but is not limited to:
- 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
- Whether the act committed was in response to a use or threat of force that the person knew was lawful
What is a reasonable force in self-defence?
A key factor the court considers in every self-defence claim is whether the defendant’s response was proportional. In defending yourself against the threat, did you stop once the threat had been subdued? For example, if you were defending yourself against an attacker, did you stop fighting them once they backed off? Or did you continue to exert force beyond what was reasonably necessary to mitigate the threat? The court places considerable weight on the reasonableness of the force used, so it is crucial that your actions were limited to what was necessary to protect yourself or another.
What about the self-defence of property? Can I defend my home or property?
In most cases, yes, you can defend your home. As with all other updated sections of the Criminal Code, the self-defence of your property, whether it is your home, your vehicle, or other property, depends on the specific details of your situation. According to section 35 of the Criminal Code, your actions and self-defence claim are justified if:
- You either believe on reasonable grounds that you are in peaceable possession of property or are acting under the authority of or lawfully assisting, a person whom you believe on reasonable grounds is in peaceable possession of the property
- You believe on reasonable grounds that another person is about to do any of the following:
- Enter, is entering or has entered the property without being entitled by law to do so
- Take the property, is doing so or has just done so
- Damage or destroy the property, or make it inoperative, or is doing so
- Your actions were committed for the purpose of any of the following:
- Preventing the other person from entering the property
- Removing that person from the property
- Preventing the other person from taking, damaging, or destroying the property or from making it inoperative
- Retaking the property from that person
- The act committed may be considered reasonable under the circumstances
The key is ensuring that the court clearly sees and understands the specific circumstances of your case and why your actions were necessary for the defence of your property.
What should you do if charged in a self-defence case?
Section 7 of the Canadian Charter of Rights and Freedom guarantees the right to remain silent if you are charged with a crime. This includes a crime of self-defence. While you should provide the police with basic information such as your name and address, it is best not to say anything else until you have consulted with an experienced criminal defence lawyer.
If you acted in self-defence and have been charged with a crime – or if you believe you are about to be charged – it is important that you speak with an Alberta criminal defence lawyer, like those at Chadi & Company to ensure your self-defence rights are respected.
How can the criminal defence lawyers at Chadi & Company help you?
With more than 190 combined years of experience, we have defended clients throughout the Alberta and Edmonton areas for more than three decades and we understand what the court is looking for in self-defence claims. We know how to build a strong, strategic defence that clearly demonstrates why your actions were justified. Our track record of defending clients who were only acting in defence of themselves, their loved ones, or their property speaks for itself. Contact us today to schedule a free consultation. Complete our contact form or call us at (780) 429-2300.
