Is Self-Defence Legal In Canada?

Every Canadian has the right to defend themselves, to safeguard their person and their property from threats.

However, with how self-defense is written into law in Canada, this right is upheld solely when the defensive actions taken are reasonable and proportional to the circumstances. Injuring an intruder in your home or using lethal force is only justified when it is perceived as the only option for self-defence against a perceived threat of severe bodily harm or loss of life.

This is where actions taken can cross over from self-defense into what is not condoned by law.

The Legal Framework Of Self-Defence In Canada

Self-defence is referred to under Section 34 of the Criminal Code which states plainly a person is permitted to carry out reasonable action to protect themselves and/or others without being guilty of a criminal offence.

In order to establish self-defence, you must raise an air of reality that the following is true:

• A force or threat of force was being used against them or another person.
• You acted for the purposes of defending yourself or others from that force or threat of force.
• Your act was reasonable in the circumstances.

There are several ways to defend or question whether self-defense was reasonable, including the following:

• The nature of the force or threat.
• The extent to which force was imminent and if there were other means available to respond.
• The person’s role in the incident.
• Whether any stakeholder in the incident used or threatened to use a weapon.
• The size, age, gender, and physical capabilities of the parties involved.
• Whether the act was committed in response to the use or threat of force that the person knew was lawful.

Exploring Self-Defence Tools: Knives, Pocket Knives, And Beyond

Self-defence weapons are permitted in Canada for certain self-defence purposes, however, these are very limited.

The use of a weapon in defending yourself can only be used if it is reasonable to do so. It is not always. Buying weapons for the sole purpose of using them in situations where you do not have a defensive purpose is illegal.

In the United States, it is widely viewed as acceptable to use guns, defence knives, or weapons to protect one’s self and/or their property. Many Canadians mistakenly believe it is the same in Canada, however, the law is different here. Under our laws, there are much more restrictions on gun usage, especially in self-defence scenarios.

Any sort of weapon can only be used to defend one’s self against a severe and probable threat.

Please note that if you are being charged and are pleading self-defence, if you used a weapon, inform your criminal defence lawyer immediately.

Analyzing The Use Of Knives In Self-Defense Scenarios

There are many scenarios where self-defence may be used, including attempted assault, attempted rape or sexual abuse, robbery, kidnapping or abduction, trespassing, or threatening behaviour.

Knives are considered less lethal than firearms, however, are not for use in self-defence. Knives – even small-fixed blades – are considered a deadly force weapon and can be used to kill. For that reason, they are considered very dangerous and, if used in a self-defence scenario, you must have legal justification.

After all, in self-defence, the key is to defuse a threat – not inflict fatal injuries. This is the crucial difference. The use of a self-defence knife for even a controlled response may result in charges being pressed, especially if there is a fatality or serious injuries involved.

Though you can successfully defend yourself using a knife, it must be a justifiable force in a self-defence context. This is the difficulty.

The Role Of Non-Lethal Weapons: Pepper Spray And Bear Spray

Non-lethal weapons are sometimes referred to in self-defence, such as pepper spray and bear spray.

More criminals are using pepper spray and bear spray to commit various crimes, and they are sometimes relied on by people to feel safer when they don’t have any other means of feeling safe.

Even though these are non-lethal weapons, they can still injure a person and/or cause complications for someone on the receiving end of being sprayed with either.

• Pepper spray is a chemical that incapacitates and stops an attacker. It irritates the eyes and nose and can cause respiratory issues and loss of consciousness. It is illegal in Canada.
• Bear spray is made of red pepper oil. Like pepper spray, it inflames the eyes and upper respiratory system.

Pepper spray is very effective in self-defence, however, carrying bear spray or pepper spray for the purpose of self-defence can result in weapons charges. Concealed carry of bear spray, for example, may result in a five-year prison sentence in Canada as defined under Section 90 of the Criminal Code.

Understanding The Canadian Criminal Code On Self-Defence

So much of the legal framework of what is self-defence is based on the Criminal Code. While Section 34 defines how self-defence should be interpreted when you are defending yourself or someone else, Section 35 delves into defence of property.

What the Canadian Criminal Code is there to do is define when a self-defence act is lawful and state clearly when a person is not guilty of an offence.

With regards to Section 35 for property, a person is not guilty of a criminal offence when the following is true:

• They believe they are in peaceable possession of property or are acting under the authority of or lawfully assisting a person they believe is in peaceable possession of property.
• They believe another person is about to enter the property without being entitled to do so; is about to take the property or has done so; and/or is about to damage or destroy the property or make it inoperative.
• They are committing a reasonable act to prevent the other person from entering the property, removing that person from the property, or preventing the other person from taking, damaging, or destroying property.

Home Invasion: Legal Rights And Limitations

Most people are not violent people but during a home invasion, when you’ve realized someone has broken into your house and you’re not sure if they have a gun or a self-defence knife, you may fear for your safety and act without thinking. This could mean grabbing a weapon of some kind and asking the home intruder to leave. They refuse and a physical encounter ensues and suddenly the home intruder is injured or killed.

This is a hypothetical that hopefully remains a hypothetical for you but, for some people, they encounter a home invasion and this happens.

If an intruder enters your home and you kill him with a firearm, that could equate to a second-degree murder charge.

In the United States, this wouldn’t be the case necessarily but in Canada, home invasions have careful legal rights and limitations. Canada, for example, does not have a ‘castle doctrine’ like the United States which gives people the right in some areas to use deadly force to keep themselves safe.

How self-defence is defined in Canadian law plays a key role in interpreting the events of a home invasion.

Firearms For Self-Defence: Regulations And Realities

Whether it is a home intruder, for otherwise legitimate defensive purposes, or was used for protection, firearms are prohibited.

Under Canadian law, there is no such thing as using a firearm for self-defense. In fact, carrying a firearm purely for self-defence is illegal.

If there is a struggle of some kind and one has to defend themselves, for your safety and theirs, do not use a firearm.

Here’s the bottom line: If you accidentally kill your attacker using a firearm, you could be charged and end up serving a multi-year prison sentence, even if the initial intent of the encounter from your side was self-defence and even if the firearm use was done in error.

With the guideline clear that you are only able to pursue defensive action deemed reasonable to the circumstances, a person defending themselves cannot use lethal force. Rarely will lethal force be seen as a reasonable force in Canada.

This not only applies to guns but any kind of lethal force. It is generally considered by the courts on a literal case-by-case basis if lethal force can be used in self-defence. Suppose you have been overly aggressive and caused an attacker’s death. In that case, it may be directly tied to that aggression or perhaps the death happened by other means, such as if they had a pre-existing health issue that cropped up during the altercation.

For this reason, one has to be extremely careful with what they do in a self-defence situation and a gun heightens the risk of making it a fatality.

The Thin Line: Defending Yourself Without Breaking The Law

Just because you were defending yourself does not give you free rein to break the law, use a firearm or lethal force, legally kill, or use a defence knife. Even in self-defence, you can be charged with assault or manslaughter.

Therefore, one must be calculated in a situation where they have to use self-defence. Ideally, there is no self-defence knife involved, no pepper spray, no possession of a firearm, and nothing of that sort. Consider alternate routes to handle a matter.

This may mean calling the police and waiting for them to provide protection or avoiding a fight altogether and simply allowing what is happening to occur. This applies if you have criminals in your home wanting money and/or situations where no one’s life or health is at risk.

If there is a physical altercation, be sure to restrain your force when you realize you have subdued the threat.

This is the best one can do when defending yourself without breaking the law. Don’t take your force beyond what is reasonable or absolutely necessary in a situation to secure safety, and for protecting you and your property.

Police And Legal Procedures Following A Self-Defence Incident

You may be charged in a self-defence situation. This may be police procedure or you may be accused of a crime you don’t believe you committed.

Under Section 7 of the Canadian Charter of Rights and Freedoms, you have the right to remain silent in such circumstances. While police will ask and should be provided basic information – such as your name and address – it is recommended to not give a police statement and do not say anything else.

Consult with a criminal defense lawyer before speaking further to the police. An experienced lawyer will ensure your self-defence rights are respected and that you do not give incriminating evidence or make a statement with details that could be misinterpreted.

As some cases are built, unfortunately, a criminal defense lawyer may advise you of how difficult it is to prove beyond reasonable doubt that you were using self-defence.

In many examples, there are no witnesses, the circumstances of an incident can be debated, and the evidence is limited. If you were a lone individual acting in self-defence, proving it in a court of law requires an experienced legal expert at your side.

Potential Legal Consequences Of Self-Defence Actions

The consequences of self-defence actions are that you will need to provide evidence and an argument in court to reinforce that the actions you took were indeed in self-defence.

Alleged criminals have rights, as do you. This is what the Charter grants us in Canada. The answer to criminality should not be more criminality and, as mentioned, just because a criminal act may be committed against you does not give you the right to use unrestrained force against them.

In Canada, the important thing in a self-defence case is to demonstrate and argue that you were protecting yourself and that your actions were done out of necessity.

Public Perception And Real-Life Examples Of Self-Defence Cases

Numerous examples exist of a self-defence situation, including most commonly encountering a home intruder.

Another that happens is an individual is out at a bar or club and having a few drinks when someone takes a dislike to something said or done. Before long, a physical altercation occurs stemming from this minor disagreement. If someone gets hit wrong or hits their head on something, the situation can turn serious.

A third real-life example is when someone approaches your car in an attempt to steal it. They may be carrying a lightweight knife, gun, or other weapon. In response, you get into a physical altercation with them and injure them or attempt to flee and hit them with your car.

In any of these, self-defence is claimed, however, public perception of these cases is that the force used must be reasonable.

If assumptions were made about someone being a threat and it’s a mistake, and you follow through with what you consider to be self-defence, a judge, jury, or public perception may not interpret it in the same manner.

In many self-defence cases in Canada, the debate is whether it was self-defence or assault.

• In the 2014 trial of R. v. Deluney, a man was charged with assault against his brother but argued it was self-defence. The two men got into a physical altercation over one wanting the keys to his house back from the other who was set to watch over the house while the other was away travelling. This was ruled self-defence as the two brothers were approximately the same size and age, they got along well prior to the incident and had no significant issues, and the act of self-defence was proportionate to the perceived threat.
• Then, there is a case of two men from Thornhill, Ontario – Alexandru and Marius Truta – who stopped three men from breaking into their garage in the middle of the night. Two of the intruders fled but the third ended up in critical condition after the attack. The two brothers were charged with aggravated assault initially, however, these charges were dropped and the defence of self-defence was accepted as the intruder had a criminal record, had previously struck one of the brothers several times on the property, robberies had taken place previously, and the brothers asked the burglar to wait for police before the fight ensued.
• Another case exists with a Port Colborne man who fired warning shots into the air to scare away a group of men who threw Molotov cocktails at his home in the middle of the night and set it ablaze. A local man had paid this group of men to do this under the mistaken belief that the homeowner was a pedophile. Though no one was hurt, the Port Colborne man was arrested for careless use of a firearm, and unsafe storage of a firearm, and the firearm and ammunition were seized. However, the court eventually found him innocent and all charges were dropped, under the argument that no unreasonable force was used to protect the individual and their property.

There are hundreds of real-life cases of self-defence all over Canada just like these.

Critical Considerations And Best Practices In Self-Defence

Self-defence is a quick reaction for some people, however, there are critical considerations that must take place before, during, and after, if an act is going to be classified and argued to be self-defence under the Canadian Criminal Code.

For example, in a self-defence situation, you must be in serious danger. If this is what you believed and acted on, even if you were mistaken in what you believed, a reasonable mistake can sometimes still support a self-defence claim.

That said, if you pursue action that is interpreted as seeking vengeance, punishment, or to vindicate honour, these are not circumstances where self-defence can be raised as an explanation for one’s actions.

Furthermore, reasonable force in Canada in a self-defence situation can be tested with the following questions.

• When defending against a threat, did you stop once the threat was subdued?
• If you were defending against an attack, did you stop fighting once the attacker backed off?
• Did you continue to exert force necessarily beyond the point of having mitigated the threat?

In crafting a self-defence argument, it is key that the court see and understand the circumstances of your case and why you pursued the course of action you did.

If you are attempting a self-defence legal claim against a police officer, these generally are unsuccessful. In order to prove your claim, you have to prove the law enforcement officer was acting unlawfully. There is often not enough evidence to say with clarity that an officer’s actions were unlawful in this context.