You have the right to self-defence, within limits

You have the right to self-defence, within limits

By Vince Semenuk

Whether Canadians have a right to self-defence is a question that regularly crops across the country. The answer is complex and nuanced, which leads to misunderstandings.

Simply stated, Canadians have the right to safeguard themselves, others and their property as long as their defensive actions are reasonable and proportional to the circumstances. However, since both of those terms are subjective, it is often unclear what is reasonable and proportional when it comes to self-defence.

Section 34 of the Criminal Code provides some guidance in this area. It states that a person cannot be found guilty of an offence if:

  • they believe on reasonable grounds that force was about to be used against them or another person;
  • that they committed their actions as a way of defending or protecting themselves or others from the use of force; and
  • the act committed was reasonable in the circumstances.

So how do we determine what is reasonable? Section 34 lays out nine factors that should be considered in making that determination. They include, but aren’t limited to:

  • the nature of the force or threat;
  • 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;
  • the person’s role in the incident;
  • whether there was a weapon used or threatened to be used;
  • the size, age, gender and physical capabilities of people involved;
  • the relationship between the people involved, including any prior use or threat of force;
  • the interaction or communication between the people involved;
  • the nature and proportionality of the response to the use or threat of force; and
  • whether the act committed was in response to a use or threat of force that the person knew was lawful.

Lethal force and self-defence

In most cases, the use of lethal force exceeds the limit of legitimate self-defence. The only exceptions are when lethal force is the only option to deal with a perceived threat of bodily harm or loss of life. That is illustrated by a 2024 incident in Ontario, where an armed home intruder was shot and killed by the son of a homeowner.

According to a news report, a group of suspects entered a home to commit a robbery. They were met by a man who lived there with a legally registered firearm. During their confrontation, one of the invaders was fatally shot with the others fleeing.

Police charged the homeowner’s son with second-degree murder, but that charge was withdrawn by the Crown months later. The lawyer for the man who committed the fatal shooting noted: "The Crown agreed with me that there was no reasonable prospect of conviction, given the defence of self-defence.”

He added that his client “shouldn't be charged with murder for protecting his mother from someone that broke into his home. His intention was not to kill the intruder, he only shot at him once.”

In almost any situation, a person must have a reasonable fear that they or someone around them is going to be killed or badly hurt before they can respond with lethal force. Canada does not adhere to the Castle Doctrine, which implies that people have the right to defend themselves with deadly force when confronted by an intruder in their home (i.e., their “castle”).

And do not think you can keep a loaded handgun ready in your home in case of intruders. All firearms must be unloaded and secured by a locking device so that they cannot be fired, or they must locked into a room or container that is hard to break into.

Defence of property

The right to defend your property against trespassers is an issue for any landowner, especially those in rural communities. In Alberta, the provincial legislature amended the Trespass Statutes in the Occupiers Liability Act in 2019 to enhance “protections for law-abiding Albertans and their property to help combat rural crime.”

This legislation aims to protect property owners from civil liability for injuries to criminal trespassers. It also strengthens the legal rights of farmers and ranchers when dealing with “harassment and occupations by protesters, which are actions that risk introducing disease and threaten the welfare of animals.”

But landowners can still be held liable if they use, or threaten to use, firearms against people on their property. As the government information states, “It is important that property owners remember that they can still be held criminally responsible for their actions and should call law enforcement to deal with trespassers.”

There have been various high-profile cases of landowners using firearms to protect this property across the Prairies. For example, in 2018 an Alberta man was charged after he fired warning shots at two trespassers on his property near Okotoks, south of Calgary. He said he fired over their heads, and not at them.

However, according to a news report, a bullet from one of those warning shots ended up in the arm of one of the intruders. The landowner was charged with aggravated assault, pointing a firearm and careless use of a firearm.

Those charges were dropped after a ballistics report supported his assertion that a ricochet bullet struck the intruder.

The Criminal Code specifically addresses the defence of property. Section 35 states a person cannot be charged with an offence if:

  • They are in “peaceable possession of property or are acting under the authority of, or lawfully assisting, a person … in peaceable possession of property.”
  • They believe on reasonable grounds that another person is unlawfully encroaching on the property, and that person intends to damage or destroy the property.
  • Their actions were aimed at preventing the other person from “taking, damaging or destroying the property.”
  • The act committed was reasonable in the circumstances.

Proving self-defence in court

Since self-defence is allowed in Canada provided that it is reasonable and proportional to the circumstances, the Crown will have to show that the accused’s action exceeded those limits.

To do that, they will likely try to prove three things:

  • There wasn’t a reasonable fear of death or grievous bodily harm.
  • The force used wasn’t to defend themselves.
  • The force used wasn’t reasonable in the circumstance.

Since the test for self-defence is so complicated, police tend to lay charges whenever someone is seriously injured or killed in an incident, then leave the assessment of self-defence up to the Crown and the courts.

Self-defence in assault case

The legal defence of self-defence can be used with charges beyond those that involve firearms. In 2023, an Edmonton man was charged with assaulting a police officer.

According to court documents, the officer was called to a McDonald’s to deal with a complaint about a man berating a drive-through employee. Approaching his vehicle, the officer demanded to see the man’s licence, vehicle insurance and registration documents. The man refused and the two of them started to scuffle with the officer landing “about 10 close-fisted punches on [the man’s] face and head.”

A Court of King’s Bench judge found that the officer was not acting in the lawful execution of his duties when he tried to arrest the man and that the man’s surliness to the McDonald’s employee did not warrant a police response.

In acquitting the man of assaulting a police officer, the judge noted there was “an air of reality to [the man’s] defence of self-defence.” The judge also stated that citizens have a “long-standing … right to be left alone.”

According to a news report, prosecutors are planning to dispute that ruling.

Contact us for assistance

The team at Dunn & Associates has defended many clients facing criminal charges, including those involving firearms and/or self-defence claims. Call us for a free consultation and only talk to police once you have spoken to a lawyer.