What is Self-Defence?
Defence of person, or self-defence is a legal defence that a person may use if they have been charged with assault or certain other offences against another person. Typically, a person will claim self-defence where they have been threatened or assaulted by another person. However, claiming self-defence does not allow a person to do whatever they wish to defend themselves. Section 34 of the Criminal Code sets out the three criteria that must be met to successfully establish that self-defence was appropriately used in any case.
The first criteria for self-defence is that the person defending themselves must believe on reasonable grounds that force is being used against them, or that a threat is being made against them. In practice, this standard means that another person in the place of the person claiming self-defence would know that force is being applied to them, or that there is a genuine threat being made against them. The second criteria is that whatever action the defender takes, it must be for the purpose of protecting them from the person using force on them. Finally, it must be determined that whatever action the defender took to defend themselves was reasonable in the circumstances and not an overreaction or excessive response.
Will Someone Go to Jail for Defending Themselves?
Except in very clear cases where a person was attacked in front of witnesses, or the attack was otherwise recorded, police will often charge the person claiming self-defence with an offence. That offence will usually be assault but may be different depending on the facts of each case. From there, to settle the issue of self-defence, the case will often need to proceed to trial. There, the Crown will make the case to convict the defender of the charged offence. The defence will then have to raise the defence of self-defence and call evidence to make their case. This evidence will usually be the testimony of the accused, or if available the testimony of a witness, or police testimony.
It is the role of the judge to decide whether the claim of self-defence is reasonable based on the facts. There are several factors that a judge must consider when reaching this decision. They are found under s. 34(2) of the Code. The factors include, but are not limited to; the nature of the force used by the attacker, such as a punch, or kick; whether the defender had the opportunity to resolve the situation or escape without using violence; the defender’s role in the incident; whether a weapon was involved; the difference in physical characteristics between the attacker and defender; any history between the parties; and how the defender chose to defend themselves. Using these factors, a judge can determine whether a claim of self-defence is appropriate in each case. It should also be noted that someone cannot claim self-defence in a situation where a police officer is trying to lawfully detain them.