The law of self-defence is an important part of the criminal law. In 2013, the self-defence provisions in the Criminal Code were amended to simplify the law of self-defence in Canada. This article provides a brief overview of the current self-defence law in Canada.
Section 34
Section 34 of the Criminal Code governs self-defence. Section 34 provides that a person is not guilty of an offence if the following 3 elements are present:
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
According to the Supreme Court of Canada, section 34 can be conceptualized in three stages: (1) the catalyst, (2) the motive, and (3) the response.
To aid in determining whether the Accused’s act is reasonable in the circumstances (the final stage), section 34 provides a non-exhaustive list of factors for the Court to consider. Section 34(2) provides the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
Air of Reality
To rely on self-defence, the Accused must show that there is an “air of reality” to the defence. The question to ask is the following: whether a jury could reasonably conclude that there was a reasonable basis for the Accused’s belief that they faced force, or threat of force, from the victim. If there is an air of reality to the defence, the Crown must prove beyond a reasonable doubt that one of the elements for s. 34(1) does not exist.
In order for self-defence to be left to the jury, there must be evidence on which a jury acting reasonably can make these findings. When determining whether there is an air of reality, the court must take a view of the evidence that is most favorable to the Accused.
The air of reality applies to each element in s. 34(1). If an air of reality is absent for one of the elements under s. 34(1), the self-defence claim fails.
Standard for Assessing Reasonableness
According to the Supreme Court, when assessing reasonableness under the catalyst stage and the response stage, a blended or modified objective standard is applied. The Court will take a contextualized approach by considering what a reasonable person, who shares relevant characteristics and experiences with the Accused, would have perceived to be a threat, and how they would have responded in the circumstances.
R. v. Khill
In the recent case of R. v. Khill, 2021 SCC 37, the Accused shot and killed an intruder leaning into the front seat of the Accused’s truck. The Accused believed the intruder had a gun, but they actually did not. At trial, the Accused was acquitted. The Court of Appeal overturned the Accused’s acquittal, and the case went to the Supreme Court.
At the heart of the appeal was the question of the correct interpretation of a person’s “role in the incident”, which is a factor enumerated in section 34(2) of the Criminal Code. The Supreme Court broadly interpreted this factor and determined that a person’s “role in the incident” must be given an expansive timeframe that takes into account a wide range on conduct, rather than a freeze-frame analysis encouraged by such concepts as provocation and unlawful assault.
The Supreme Court found that the Trial Judge failed to give proper instructions to the jury regarding the Accused’s role in the incident. The Court held that the Accused’s role in the incident “should have been expressly drawn to the attention of the jury” and the absence of any explanation concerning the legal significance of the Accused’s role in the incident was “a serious error”. A new trial was ordered.
If you or someone you know were in an incident involving self-defence and are facing criminal charges, contact a criminal defence lawyer in your jurisdiction as soon as possible. Fahd Ahmed is a criminal defence lawyer based in Toronto, ON and defends against all criminal charges.
Blog posts are not legal advice.
Fahd Ahmed | Lawyer 