Self-defence is one of the most well-known defences in criminal law. It is the act of protecting oneself from a real or perceived threat, often by using physical force to defend oneself.
It falls into the category of excuses that relate to excuses. This means that the constituent elements of the offence are present, but there is a valid reason justifying the conduct of defending or protecting oneself in the event of the use of force or threat of the use of force.
Self-defence, therefore, is used to excuse the morally criminal behaviour of the person who commits it, as he or she is considered to have “had no choice but to break the law”. If proved, it will lead to the acquittal of the accused.
Self-defense can be against oneself, another person, or property.
Self-defence against persons
There are 3 conditions for self-defence to be invoked against individuals:
- First, the accused must believe that force is being used against himself or another person or that it is being threatened against himself or another person. This belief must be based on reasonable grounds.
- The accused must have committed the act constituting the offence for the purpose of defending or protecting himself or herself, or defending or protecting others. There could be no self-defence if the accused commits the act for the purpose of revenge or punishment, he must really have sought to defend himself.
- The accused must have acted reasonably in the circumstances. In assessing this test, judges consider several factors listed in the Criminal Code.
The Court takes into account, inter alia, the nature of the force or threat, the degree to which the use of force was imminent, the existence of other means of dealing with it, or the presence of weapons. It will also take into account the personal characteristics of the parties, their relationship and their history.
It is important to note that the accused’s reaction must be proportionate to the attack against which he or she was defending himself or others. For example, in Khill, the Supreme Court of Canada found that shooting and killing an unarmed car thief was a disproportionate response.
Battered Woman Syndrome
In the Lavallée decision, the Supreme Court highlighted the battered woman syndrome, often invoked by abused women who kill their spouses. This syndrome consists of a recognition of a diminished capacity for judgment in women who are victims of domestic violence.
However, this is not a defence in itself. Thus, self-defence cannot be automatically invoked when an abused woman kills her husband. Rather, it tempers the reasonableness of the perception of danger and mitigates the requirement that there be no reasonable alternatives, criteria that the court considers in determining whether or not self-defence exists. To be used, it requires an expert to demonstrate the accused’s mental state at the time of her spouse’s murder.
Self-defence of property
The Criminal Code provides that it may be possible to legitimately defend the ownership of one’s property. Like the defence of self-defence, this defence includes certain criteria which, when met, lead to an acquittal.
- The accused believes, on reasonable grounds, that he or she has the peaceful possession of property or that he or she is assisting the person who has the peaceful possession of the property.
- The accused believes, on reasonable grounds, that the property is threatened, invaded, taken, damaged or about to be damaged.
- The accused commits the act constituting the offence for the purpose of protecting, defending or repossessing the property.
- The accused is acting reasonably in the circumstances. It should be noted that in R Gunning, the Supreme Court of Canada held that it is never reasonable to commit an offence causing death solely for the defence of property, i.e., if there is no threat to safety.
Burden of proof
To be acquitted of a criminal offence on the basis of self-defence, whether in respect of a person or property, it will be sufficient for the accused to raise a reasonable doubt in the mind of the judge that he or she was in fact acting in self-defence, and he or she will be acquitted. The prosecution will have the burden of proving beyond a reasonable doubt that one of the criteria for the plea has not been met.
Self-defence remains a complex defence to invoke. Whether it is to defend oneself, protect others or preserve one’s property, it requires a thorough understanding of the Criminal Code.
If you are faced with a situation where this defence could be raised, it is crucial to consult with an experienced criminal lawyer who can assess the facts and offer the best defence possible. Contact us for a consultation today.