Whether defending your home, your business, your family, or yourself, Canadians often believe that the law does not favor their efforts to defend themselves. It is true that the law is a little grey on the matter in places.
However, the law is not a murky as many Canadians seem to believe. In fact, the law can be more flexible regarding, and juries more accepting of, self-defence claims than seems to be the popular belief.
The practical reality is that self-defence claims almost always are situational – whether the actions taken in self-defence are reasonable in the face of the threat faced. Canadians have the strongest rights of self-defence when within their own homes, where a person is justified in using as much force as reasonably necessary to prevent someone from breaking into their home or otherwise unlawfully entering the home. If the threat posed is sufficient and there is a reasonable belief the person attempting to enter unlawfully will harm or kill you, self-defence could even include killing the intruder. The key always is the reasonableness of your response.
Defending Yourself or Your Property Is Not Illegal in Canada
Many people seem to believe that Canadian law does not allow for self-defence. Nothing could be further from the truth. Section 34 of the Criminal Code of Canada explicitly allows self-defence when a person:
Believe[s] 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; and the act committed is reasonable in the circumstances.
As reformed in 2012, the Criminal Code retains the trigger for a self-defence claim from previous law, requiring both a subjective and objective test of reasonableness. This means that, subjectively, the person claiming self-defence must have reasonably believed that the actions taken were necessary under the circumstances, and that, objectively, a “reasonable person” would have agreed that the person claiming self-defence acted reasonably.
By combining the objective and subjective test, though, the newer law does not distinguish between levels of potential threat, at least as it regards responding to a threat. However, “reasonableness” of response still applies. You may not kill a panhandler aggressively seeking spare change. Department of Justice guidance makes it clear that “the nature and degree of the threat may impact differently upon the determination of whether the accused genuinely responded with a defensive purpose … and whether the actions taken were reasonable in the circumstances.”
You can only use the kind of force in self-defence that is appropriate to the threat faced. However, you can use such appropriate force, and the “reasonableness” of the force used in self-defence will be largely a matter for a jury to decide.
If You Have Been Charged with Assault and are Claiming Self-Defence in the Calgary area, Contact the Lawyers of Bourdon Defence
If you have been charged with assault or another crime of violence and are claiming you acted in self-defence in Calgary or anywhere in Alberta, you should consult a lawyer to determine what your rights are under the circumstances.
The lawyers of Bourdon Defence can assist you in protecting your rights under such circumstances. You can reach us at (403) 474-4143 or through our website.