Can you be Charged with Assault for Defending Yourself?
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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