ASSAULT CHARGES AND SELF-DEFENCE

In Canadian law, self-defence is a legitimate defence to an assault charge. An individual who is being physically attacked has the legal right to use only the reasonable amount of force necessary to stop the assault. That being said, self-defence is a defence the offence of assault, and not a method of avoiding being charged.

When a physical altercation occurs, or there are allegations of an assault, the police will lay charges on who they believe to be the aggressor. If they are unsure of who the aggressor was, both parties will often be charged. While the police have a significant amount of discretion regarding who they charge with a criminal offence, it is generally not their place to determine who is and who is not guilty of a criminal offence.

Unless the police witnessed the altercation themselves or have a reliable witness to explain to them what occurred, police often have no choice by to charge both individuals and let the Court figure it out later. When this happens police will take a statement from both individuals in an attempt to gather evidence and determine what happened. In many cases, these situations turn into he-said-she-said scenarios, where both individuals argue that they were the victim and that the other party was the aggressor. In these situations, unless other evidence can be uncovered to prove who is telling the truth, such as CCTV footage of the incident, it will be difficult to determine who the aggressor was.

As a result, an individual who was defending themselves or their property, and assaulted another person as a result, may nonetheless have to hire a lawyer to defend themselves against an assault charge.

Depending on the nature of the offence and the criminal background of the accused, the Crown may in some cases offer a favourable plea deal for simple assault cases. This option, however, will only be viable for those who are actually guilty. The Courts are unable to accept a guilty plea from any individual who is not guilty. The Court’s also cannot accept a guilty plea from someone if the accused qualifies the plea is some way. For example, an accused cannot plead guilty to an assault offence and then qualify their plea by saying they were defending themselves. The Court will not accept such a plea.

As a result, an individual who has been charged with assault, but is adamant that they were defending themselves, must go to trial. In some situations, an experienced defence counsel may be able to negotiate with the Crown and present evidence to bolster the self-defence claim, convincing the Crown to withdrawal the charges. Where the Crown does not believe there is a reasonable prospect of conviction, such as cases of legitimate self-defence, they will be unable to proceed with a trial and will often withdrawal the charges against the accused.

In most cases however, this will not be a viable option, and the accused will be forced to go to trial. Due to the burden of proof in the Canadian justice system, an accused is not required to present any evidence at trial to prove their innocence. Rather, the Crown must prove, beyond a reasonable doubt, that the accused committed the assault. Only when the Crown has proven beyond a reasonable doubt that the accused committed the assault will the accused be required to present the defence of self-defence. If the Crown fails to make their case, the accused will not be required to call any evidence and will be acquitted.

Where the Crown does make their case however, the defendant will be required to present evidence to the Court to show that they were defending themselves against an attack by the complainant. The defendant must also show that they used only the force reasonably necessary to stop the attack.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Frequently Asked Questions

What are the best Defences to Assault Charges?
-Consent
-Defence of Person
-Defence of Property
-Reflex Action
Can you Legally Shoot an Intruder in Canada?

Additional Resources

Assault
Assaulting a Peace Officer
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening

What are the Best Defences to Assault Charges? 

In Canada, there are four defences commonly used by those charged with assault:

  • Consent
  • Defence of Person
  • Defence of Property
  • Reflex Action

In determining whether or not the force used was reasonable under the circumstances, the Court will consider the following:

  • 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 accused 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 of threat of force; and
  • Whether the act committed was in response to a use of threat of force that the person knew was lawful.

If you have been charged with assault for defending yourself, our Firm can assist you in negotiating with the Crown to obtain the best outcome for your case.

Consent

An individual who has been charged with simple assault may argue that the complainant consented to the assault. This defence is sometimes used in situations involving individuals participating in a consensual fight. If the individuals had both agreed to engage in the physical altercation before it began, an individual charged with assault as a result may successfully employ this defence. This defence is rarely used and will require the accused to testify at their trial and provide evidence that the complainant consented to the assault. The complainant will likely need to bolster this argument with testimony of their own for the defence to be successful.

Defence of Person

As outlined above, an individual who is being physically attacked may use only the force reasonably necessary to stop the attack and protect themselves. In situations where the complainant was the aggressor, the defendant will be able to argue that they were defending themselves when they assaulted the complainant. The defendant must prove that they used only the force reasonably necessary to stop the attack. They must also prove that they genuinely believed they were being attacked or were being threatened with attack. Individuals who use excessive force to defend themselves will not be able to use this defence and will be found guilty. An individual may also use force to defend another person. For example, an individual would be permitted to use force to defend a member of their family who was being assault or threatened with assault.

Defence of Property

An individual who has been charged with assault may also argue that they were defending their property when the assault occured. Defence of property is a legitimate defence to an assault charge only where the defendant was in “peaceful possession” of the property they were defending. This means the defendant must have had a legal right to possess the property. Where an individual is in peaceful possession of their property and the complainant entered that property without permission, the individual will be permitted to use only the force reasonably necessary to remove the intruder from their land.

Reflex Action

An individual who has been charged with assault may also use the defence of reflex action. For an individual to be guilty of the offence of assault the Crown must prove that the accused intended to assault the complainant. Where the accused reacted to something with a reflexive action and as a result struck the complainant, the accused may argue that they are not guilty of assault because they lacked the necessary intent.

Can you Legally Shoot an Intruder?

In Canada, individuals are legally permitted to use only the force reasonably necessary to stop an attack on their person or property. That being said, the Criminal Code does not define “reasonable force”, and the amount of force reasonably necessary to stop an attack or trespass will vary significantly from case to case. As a result, the Court will determine what is necessary on a case-by-case basis.

An individual is generally not permitted to shoot another individual for trespassing on their property in Canada. Though there is no Brightline rule of when you can and cannot use force in your home, Canadian Courts have been reluctant to permit homeowners to shoot individuals who have trespassed onto their property. As mentioned above, in cases where force is used and the defendant is arguing defence of person or defence of property, the Court will determine whether the force used was appropriate on case-by-case basis.

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