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Self-Defence Laws in Canada

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.

Can Someone Legally Carry a Weapon to Protect Themselves in Canada?

In Canada, weapons cannot be carried for self-defence. This applies to many kinds of weapons ranging from firearms to knives, and beyond. Unlike in the United States, Canadian citizens cannot carry concealed firearms on their person. Furthermore, s. 84(1) of the Code includes a definition of prohibited weapon that identifies certain kinds of knives or other weapons.

If a person is stopped by police and they discover a weapon on their person, that person may be charged with a weapons offence. Examples of these type of offences include carrying a concealed weapon or possession of a weapon for a dangerous purpose. Specifically, possession of a weapon for a dangerous purpose, set out under s. 88(1) of the Code, makes it an offence for someone to carry or possess a weapon, imitation of a weapon or a prohibited device or ammunition for a purpose that is dangerous to the public or to commit another offence. This offence is the basis for the prohibition against carrying weapons for self-defence, because of the danger that these weapons could pose to the public if used carelessly. In the event that someone were to attempt to use a weapon for self-defence, they may be charged with assault with a weapon.

Jail Sentences for Assault Charges in Canada

Donich Law - Assault Punishments

Can Someone Shoot an Intruder on Their Property in Canada?

There is no simple answer to whether a person in Canada can shoot someone trespassing on their property. There are some cases where a person can use lethal force to defend themselves in their homes. However, when the issue of self-defence is raised in court, a person’s actions taken in self-defence must satisfy the criteria discussed in the section above. This means that a court must be satisfied that a defender had reason to fear for their lives and took action to defend themselves. From there, the court must assess the reasonableness of the lethal force used in each case.

Where lethal force is used in self-defence, it is likely that certain factors that determine reasonableness are given more weight than others. Specifically, a court will look at the nature of the force or threat faced by the defender, whether a weapon was involved, the physical differences between the parties involved, and perhaps most importantly, the possibility for the defender to respond differently to the situation. Killing another person in self-defence should always be a last resort. Therefore, a court will carefully consider if it is reasonable to believe that the defender could have escaped a situation or resolved it with lesser force before determining if a self-defence claim is successful.

How to Defend Assault Charges

What is Defence of Property and Defence of Another? 

Under s. 34 of the Code, a person can come to the defence of another person who is being attacked or threatened. The reasonableness of their actions is determined based on the same criteria discussed above. However, the actions they may take within the boundaries of this defence may be more limited than a person claiming self-defence. This is because adding another person to an incident often changes the power dynamic of a situation. Therefore, it may be possible to reasonably expect that the situation may be resolved using less force than would have otherwise been needed.

Section 35 permits someone to use force to defend their property. This defence only applies if the person is the lawful owner of the property in question, including pets or other animals, and the other person involved is not another lawful owner of the property at the heart of the dispute. The defence applies where the defender reasonably believes that another person is about to or has entered their property, is about to or has taken their property, or is about to or has damaged or destroyed their property. The action that the defender then takes must be done for the purpose of preventing whichever of those scenarios is applicable to their situation. Finally, whatever action they take must be reasonable in the circumstances. The issue of reasonableness will be decided as described in the section above. However, the scope of what action is considered reasonable will change because of the difference in value between defending a person and defending property. Therefore, a defender may be more restrained in what sort of force they may apply to defend their property.

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Recent Cases

R. v. Paucsek, 2023 ONCJ 384

This Ontario Court of Justice case explores a scenario where self-defence was successfully claimed. The accused was charged with assault with a weapon and aggravated assault. The case revolved around a dispute between a husband, the accused, and his wife. The husband claimed that his wife was violently assaulting him, which led him to defend himself by stabbing her in the abdomen with a sword kept in their bedroom. Prior to this incident, the wife was released on bail after being charged with assault causing bodily harm where the husband was the victim.

This case hinged on the success of the self-defence claim. In deciding on this issue, the court looked at several factors including the history of violence between the two parties, the fact that both had been drinking at the time of the incident, and the fact that the husband was elderly and frail, while the wife was significantly younger and taller. The nature of the assault leading to the defence was also important. The court accepted as evidence that the wife punched the husband several times and attempted to force his head onto the stove. The court highlighted that it would have been best if the husband had left the home, but he had no legal obligation to do so. Given all the factors at play, it was determined that the stabbing, though unusual, was not an unreasonable use of force. “Given the previous beating he suffered two months earlier and the attack in the kitchen moments before, it was reasonable for Mr. Paucsek to reach for the closest weapon to defend himself. The only weapon available to him was the sword. Mr. Paucsek picked up the sword and warned Ms. Vasilescu to stay away but she did not retreat.” [at para 23]

R.  v. Williams, 2021 ONCJ 415 

This Ontario Court of Justice case is one example of where a claim of self-defence will not be accepted by a court. The case dealt with a homeless man who was charged with assault with a weapon. The charge arose out of an altercation between the accused and another man outside of a shelter after the two have been removed from the building by staff. The main issue at trial was which man started the fight. Security camera footage showed that the accused came at the victim with a knife and swiped at his neck.

The accused attempted to claim self-defence. To successfully rely on a defence, an accused person must base their claim on some form of evidence. This is otherwise known as the “air of reality”. The accused’s attempt to claim self-defence had no air of reality because it was clearly contradicted by the video evidence that showed the accused as the aggressor. “As a result of my observations of the events on the video, despite the defence’s imaginative arguments, I find as a fact that the video shows clearly that Mr. Williams was holding a knife in his right hand. I am persuaded beyond a reasonable doubt that it was a knife.” [at para 61]

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.