Q: There have been stories inthe news concerning criminal charges of assault and murder where the accused relies on an argument of self-defence. How does self-defence work, and when and how are you entitled to defend yourself?
A: In general terms, self-defence refers to a person’s actions taken to prevent someone from harming him, another person or one’s property.
Section 34 of the Criminal Code of Canada allows citizens to defend themselves, provided the defence is reasonable and proportionate. It reads as follows:
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34 (1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
Section 34 (1) creates a general right to defend yourself. This comes with rights, but also obligations. You can use force to combat force brought against you, but it has to be reasonable and proportionate. As the criminal code says, “no more than necessary.”
So if someone is in your yard and won’t leave and starts shoving you, you cannot shoot him with a shotgun. That is not in proportion to the force being brought against you.
This general right to self-defence also carries with it a mental element. If you defend yourself and in the process someone is badly hurt or killed, you may not be guilty of a crime as long as you did not intend to hurt or kill that person.
In my previous example, if the person won’t leave your yard and is shoving you, and you shove him back, causing him to fall and hit his head on a rock, this law may prevent you from being charged or convicted of a criminal charge.
Section 34 (2) creates a different aspect to self-defence. If someone is assaulting you unlawfully and you defend yourself, and you do cause injury or death, you are not guilty of any criminal charge if you meet the two tests set out in the section.
You have to believe the person assaulting you is going to kill you or cause you serious physical harm. That belief must be reasonable.
You have to have no alternative. You have to have tried retreating or doing something different, unless those options are not possible. It is only when you have no other choice than to apply serious force that your actions are justified.
It is important to note that self-defence is available to everyone in Canada. You have to be careful to assess what is happening and be sure about the situation you are in.
Not surprisingly, this line of defence is often controversial. Some women have been found not guilty of murdering their husbands when there was compelling expert psychiatric evidence of battered wives’ syndrome. Judges and juries are left to grapple with questions that have a social as well as a legal context.
Self-defence is a complex question driven by complicated legal principles and particular facts in each case.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
