One of the big concerns many people have regarding self-defence is understanding what they legally can and can't do. No one wants to get in trouble with the law just because we are trying to defend ourselves. Because of this confusion, many hesitate in moments of danger, which is the worst time to hesitate. We should be confident and clear on how the law protects and limits us so we can defend ourselves physically and in a court of law if need be. There are no black and white answers, but if we can understand the parameters of what is lawful, this gives us faith in our actions.
Self-Defence in the Canadian Criminal Code
The Canadian Criminal Code is a set of laws to protect Canadians from harm and crime, but they are also vague and challenging to understand. The vagueness is intentional as there needs to be a lot of "grey area" to evaluate and assess each individual circumstance as they are all unique in and of themselves. Every court case is handled on a case-by-case basis.
Self-defence is the act of protecting yourself against a real or perceived threat. This could include defending against: attempted assault, assault, robbery, kidnapping, grievous bodily harm, murder and others. Unfortunately, numerous Canadians are criminally charged themselves or civilly sued due to harming their attacker, even though they were defending themselves. Therefore it's important to understand your limits and rights. When in doubt it is always best to seek legal counsel.
Ultimately, your actions must be reasonable and justifiable. Reasonable meaning just enough force to stop the person from continuing to harm you, others (or property that you have a right to defend) and no more. Justifiable, meaning that if the case went to court, you would be able to properly explain your actions and it would have to make sense to other people what you are saying. This is especially true in the case if the subject committing the original offence was harmed due to the force you administered to stop them.
In Canada, there are two federal laws in the Canadian Criminal Code that give you protection and limitations to defend yourself and property:
Section 34: Defence of Person
Section 34 deals with defending yourself (or someone else) against another person. First off, defending yourself includes not just physical force but also threat of force, so any words and tools used to threaten.
Defence — use or threat of force
34 (1) A person is not guilty of an offence if
(a) 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;
(b) 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; and
(c) the act committed is reasonable in the circumstances.1
This essentially says that you are justified in using force and are not guilty of an offence related to hurting someone in an act of self-defence if: there is a threat or physical force used against you or someone else (purposefully), the reason why you hurt the other person was to protect yourself or someone else (and not for any other reason), and if the amount of force is reasonable.
The next part discusses the factors that are considered in court with regards to determining what is "reasonable".
Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) 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;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) 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;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.2
This part says that a number of factors will be considered when weighing the situation. What is your size, gender, physicality, skills, weapons used compared to the other person's size, gender, physicality, skills, weapons, etc.? If a 5' tall slender female with no skills and no weapons assaulted a 6' tall built male with physical skills, he would be much more heavily scrutinized if he seriously hurt her in self-defence. If roles were reversed, and she even had an intermediate weapon like pepper spray, she may be justified in using it in this situation. In this case, the weapon "equalizes" the interaction to a certain degree. This means that with his size and skills, her use of pepper spray now gives her enough of an upper hand to have a fair chance at defending herself. Now if she had a gun instead of pepper spray, and he only had his hands, this may be considered excessive force. But if her life was imminently threatened, she may be justified in using a large amount of force to prevent him from killing her.
Other factors include: Did you have other options that you could have taken that would have caused less damage, such as running away? Was this an isolated/random incident or did this happen due to an escalation in the relationship? Did you seriously hurt someone when the use of force used on you was lawful, such as by police in a justifiable situation? Did you provoke and cause the situation to begin with? Were there others involved who may also have been using force? The entire situation from beginning to end, including degree of damage would be evaluated.
What we are talking about here is Totality of Circumstances. Defined by Wikipedia: "Under the totality of the circumstances test, courts focus 'on all the circumstances of a particular case, rather than any one factor' ". This means that if you were criminally charged or sued because you defended yourself, in a Canadian court of law all of your factors will be weighed against all of the factors of the assailant when determining if your use of force was reasonable and justifiable.
The third part of this section (below) says that you are not justified in defending yourself if a person who is authorized by the law (police) to enforce laws is using force to do so. The only exception is if you believe that officer is doing so unlawfully, such as using excessive force.
No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.3
Section 35 - Defence of Property
The next section covers your rights in defending property (possessions or land), yours or someone else's that you have authorization to defend, and defending yourself while doing so.
Defence — property
35 (1) A person is not guilty of an offence if
(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;
(b) they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered the property without being entitled by law to do so,
(ii) is about to take the property, is doing so or has just done so, or
(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of
(i) preventing the other person from entering the property, or removing that person from the property, or
(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances.
This first section covers the situations where you would be justified in using force and not be guilty of an offence. You are justified if you had authorization to protect the property, there was evidence to indicate that the other person is going to enter or destroy the property, the reason you used force on the person was for the purpose of removing them from the property or preventing them from causing damage, and your actions were reasonable in using just enough force to stop them and no more.
The next two sections discuss two situations where you are not justified in using force to defend a property. The first is that if the other person truly believes they own or are entitled to have it. The second is if they are lawfully enforcing the law (as police), unless you believe that their actions are unlawful.
No defence
(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.
No defence
(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Summary
At the end of the day, we must consider all factors in the situation when considering defending ourselves, another person or property. We do have rights to defend our own life, those we care about, and our property if it is threatened. But these rights have limitations. If we have to use force, it must be reasonable and justifiable. This is a big grey area. Ultimately it is the courts who decide base on all evidence and their third-party objective perspective.
In Krav Maga, we learn to assess situations under stress so that we can make the best decision for our personal safety. Perhaps it's evading and escaping the situation is there is an opportunity. If no opportunity is present, perhaps there are other things we can do to stop the attack, such as locking the other person out of the area, or putting an object between them and us to slow them down. We also learn physical tools in the event we cannot escape and must defend ourselves to preserve our life or those of someone in our care when there is no other option. These tools first focus on blocking attacks, and then aim at disabling the other person for the purpose of preventing them from continuing their attack so we can escape safely. These are practiced in a controlled fashion on the mat, and taught to use responsibly with thought and control off the matt.
Know your protections and limitations in using force to defend, so you can defend effectively without hesitation. And do so responsibly, with a level head so that you are justified.
Disclaimer: Tip of Spear Inc. is not a law firm nor does it provide legal advice. This article is for information only and should in no way be used for legal guidance or anything outside of what it was intended for. If legal advice is required, please contact an attorney.
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