How far should a person’s right to self defence go?
If Charged with Assault While Acting in Self-Defence, You Need to Understand the Current Laws
Within the Canadian Criminal Code, assault is considered a criminal offence and carries various punishments depending on the type and circumstances of the assault. For example, simple assault convictions (the most common charges that are generally minor and unplanned) carry a lesser penalty than convictions of assault with a weapon or of a peace officer. As an Edmontonian, and a Canadian citizen, you have the right to defend yourself when force is used against you, but exactly what actions are within your rights when acting in self-defence?
What Canadian Law Defines as Assault
First of all, let’s look at what is considered assault in Canada. As per the Canadian Criminal Code Section 265 (1): “A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.”
Section 265 (2) of the code further explains that the above “applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.”
In summary, an assault in Edmonton or elsewhere in Canada, can range from uttering threats or making threatening gestures to causing injury or simply physically touching a person without their consent. As well, the definition extends to a third party, meaning that self-defence action could be reasonably applied in defence of a person who is observed to have been threatened or perceived as being threatened in any of the described manners.
Know When Defending Yourself Can Become Assault
While committing any of the above offences can result in criminal assault charges, the use of force when acting in self-defence has several mitigating factors that are taken into account when mounting a legal defence. In 2003, Section 34 (defence of Person) of the criminal code read as follows:
“34 (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.”
However, this and the following eight sections of the code outlined multiple defence approaches according to the nature of the assault. In 2013, reforms were made to simplify the code to a single defence approach with the passing of Bill C-26.
Bill C-26, the Citizen’s Arrest and Self-defence Act, S.C. 2012 c. 9, came into force on March 11, 2013, replacing the previous Criminal Code provisions on self-defence and defence of property.
Section 34 (1) of the Canadian Criminal Code was reformed to state that: “A person is not guilty of an offence if
(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.
Notably, the new law eliminates the term “unlawfully assaulted”, removing any distinction between levels of threat and thereby widening the scope of what constitutes a threat. This means that regardless of the extent or nature of threat a person perceives, they are justified in taking self-defence actions based on what they honestly believed to be true at that time, providing those actions are deemed reasonable under the circumstances by another ‘reasonable’ person, whether a judge, jury or lay person.
How Much Force is Too Much?
So what does the law allow you to do to defend yourself? It boils down to three main things: you must reasonably perceive a threat against yourself or another person; you have to act with a defensive purpose; and your actions must seem reasonable in the existing circumstances. What is ‘reasonable’ is generally based on whether another person would do the same thing in the same situation. As to what actions are permitted, only force used specifically for the purpose of defence of oneself or another person is allowed.
For example, if a store robber simply tries to leave the scene without making a physical threat, the store owner or staff cannot restrain or inflict harm on the robber, as the act would not be self-defensive since the threat was not present, removed or withdrawn.
Similarly, a large man may be guilty of assault if he repeatedly punches a much smaller person after they pushed or shoved him during an argument, since the smaller person did not represent a reasonable risk of harm or injury to himself, thus removing the defensive purpose requirement.
In Edmonton, there are many festival-type events and areas of the city where large gatherings occur, and where an increased police presence and/or action has raised some concern. Since the police are acting in enforcement of the law, it should be noted that a person can only use self-defence action against police if they reasonably believe the officer or officers are acting unlawfully, such as by demonstrating excessive force.
Engage A Criminal Defence Lawyer if You Are Charged with Assault
Being well informed of the laws regarding assault and self-defence is important, but if you are charged with assault, your best defence is to seek legal representation from an experienced defence lawyer who is well versed in criminal law, assault charges, and the Canadian criminal code.
Remember, you are innocent until proven guilty, and you have the right to defend yourself and have your day in court. Choosing the right criminal defence lawyer can change everything, and our Edmonton team of highly experienced criminal defence lawyers at Martin G. Schulz & Associates will guide you through every step of the criminal justice process.
Together, we will build the best defence for your individual case, and ensure you receive the dedicated representation, respect, and results you deserve.