For a long time, Canadians who were acting in self-defence would have a difficult time legally justifying their actions, as the Criminal Code contained multiple provisions that addressed the issue of self-defence and it was challenging for many judges to explain the nuances of the law to juries. As a result, the Code was revised, and in June 2013, the Citizen’s Arrest and Self-defence Act came into effect, amending the many existing sections of the Criminal Code that had caused confusion about the extent of the right to self-defence in Canada.
The Act now permits a person who reasonably believes themselves or others to be at risk of the threat of force, or of acts of force, to commit a reasonable act to protect themselves or others.
Defence of the Person
The new simplified “defence of the person” has three key elements:
- a person reasonably believes that force is being used against them or another person or is threatened;
- that the act of self-defence is committed for the purpose of defending or protecting themselves or the other person; and
- that their act committed is reasonable in the circumstances.
Factors Considered in Determining What Was Reasonable
Note that two of the three elements contain the words “reasonably” or “reasonable.” That is no accident, as the key to a claim of self-defense is whether the court concludes that the action taken was in fact “reasonable.” As such, the Act sets forth nine factors the court shall consider in determining whether the act was reasonable in the circumstances:
- 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; and
- whether the act committed was in response to a use or threat of force that the person knew was lawful.
Obviously, when a person truly feels threatened and honestly believes that they are acting in self-defence when they use force against another person, they are not going through a mental checklist of factors to determine whether their action is legally justifiable. But if you find yourself facing criminal charges based on an act you considered to be self-defence, it is crucial that you retain an experienced criminal defence lawyer who fully understands the Citizen’s Arrest and Self-defence Act and can use it effectively on your behalf.
Ottawa Criminal Defence Firm Engel & Associates Defends Against Even The Most Complicated Charges
Criminal lawyers Bruce Engel and Elena Davies have represented individuals and businesses charged with hundreds of different offences throughout Canada for more than two decades. From the start of a criminal investigation to the close of a trial, we will take a balanced and forceful approach to your defence. We have the experience and know-how to effectively navigate the constantly changing justice system in Canada.
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