Can You Be Arrested for Self Defence?
Picture this scenario: You find yourself at a bustling pub, and an altercation arises, quickly escalating from verbal insults to physical aggression, with shirt-grabbing and pushing involved. In such a moment of confusion, questions arise: Should you push back in response? Are you legally allowed to defend yourself? To what extent can you protect yourself from this aggression? These are crucial concerns, and fortunately, the self defence laws in Canada provide some answers. Let’s explore the ins and outs of self defence laws in Canada, delving into the essential details.
Defining Self-Defence:
Self defence refers to the act of protecting oneself from an actual or perceived threat. It involves using force to restrain or prevent harm from coming to an aggressor. Various situations may warrant self defence, such as attempts of assault, sexual assaults or attempted rape, robbery, kidnapping, trespass, or dangerous behavior that poses a threat.
However, the right to self defence is not a one-size-fits-all concept; each situation must be evaluated individually. Misconceptions surrounding self defence can lead to complex legal issues without proper support, and unfortunately, many Canadians face criminal accusations or even fatalities when they believed they were acting in self defence.
Raising Self-Defence at Trial:
In a trial, a defendant may present self defence as a defence if they can substantiate its involvement through evidence or by questioning witnesses for the prosecution. However, for self defence to be deemed admissible before a judge or jury, it must pass the “air of reality” test, which determines whether the defence holds merit.
This “air of reality” signifies a prerequisite assessment to decide whether the defence should be considered in the case. Failure to meet this test renders the self defence claim invalid. Trial arguments often center around the “reasonability” of the victim’s actions and the defendant’s response, particularly whether the defendant’s reaction was proportional to the use or threat of force.
Key Points on Self-Defence under Canadian Law:
Home Attacks:
In cases of assault on oneself or one’s property, Canadians have the right to use force for self defence. For instance, when someone attempts to break into your home or steal your car, you can act to protect yourself and your property. However, the use of force must be reasonable, and once the aggressor ceases their attack, any further use of force should also stop.
The Fear of an Attack:
When facing threats or violent gestures without immediate harm, you may still have recourse for self defence. The recent Act outlines three essential components of self defence: Recognizing the attack directed at you. Acting defensively, if at all. Employing force justified by the actual or perceived attack conditions. These factors help judges determine whether self defence was genuine or malicious. The same principles apply when defending someone else from an attacker.
How to Defend Yourself:
Reasonable measures are permissible for self defence against force or threats. However, the courts will consider the factors outlined in section 34(2) of the Criminal Code to determine if the force used was justifiable.
Use of Weapons:
Using a weapon for self defence against a threat or danger is permitted if you have reasonable grounds to believe that force will be used against you. However, purchasing guns with the intention of using them outside of self defence situations is illegal. Additionally, firearms are generally not allowed for self defence or property defence in Canada.
Understanding Reasonable Force:
Reasonable force entails using the necessary level of force to protect oneself from an aggressor’s threat. Using force solely for self defence without escalation is considered reasonable. The courts will examine the elements stated in section 34(2) of the Criminal Code to determine if the force used aligns with self defence claims.
Using Lethal Force:
Sections 34 and 35 of the Criminal Code permit individuals to defend themselves or their property. However, the use of lethal force must be appropriate in the context of the situation at hand. The justification for using lethal force will depend on the specific circumstances.
Accused of Acting in Self-Defence:
In the event of being accused of a crime, including self defence actions, you have the right to remain silent under Section 7 of the Canadian Charter of Rights and Freedoms. While you should provide basic information to the police, it is generally advisable to refrain from speaking with them and instead consult an experienced criminal defence lawyer to protect your rights related to self defence.