Your Right to Self Defence: A Practical Guide

Detached reflection cannot be demanded in the presence of an uplifted sword.

Holmes J. in Brown v. United States, 1921

As a society under the Rule of Law, we are in constant discussion about our legal rights. Our debates about the fair interactions among individuals, and between citizens and government, contain perpetual talk about different kinds of rights – Charter rights, inherent rights, human rights, cultural rights, land rights, indigenous rights, social rights, political rights – and the list goes on. Some of these seem more important to some of us than others. Some may be well-defined and entrenched in our laws, while others may seem more conceptual and have questionable application to our everyday lives. There is, however, at least one right that we’ve known since the dawn of our species. It existed before social science or political theory. It existed long before anything like a “government” had ever appeared on the face of the Earth, and it applied equally to every human being, of every race and creed. And since this ancient right is so practical that you might even need to exercise it this very day, I’m going to brief you on the right of self-defence – what it is, and how it works under Canadian law.

An Ancient Right

It’s fairly evident that self-defence is an inherent right, pre-existing any governments or institutions that might declare it so. Defending oneself was a necessary component of daily self-preservation in whatever “state of nature” existed in pre-history – hunting animals, gathering berries, and then crossing spears with anyone who came to your cave that night to try to take it all away from you. Indeed, self-defence would have been such a constant concern in this war of all-against-all that it was a primary reason for the creation of governments in the first place. People banded together for collective self-defence against other groups of people (and against large predators) and tried to put rules in place to deal with violence among members of their own group. It’s easy to draw from this that self-defence did not originate as a right granted by a benevolent government, but as a reason for having government in the first place. This does much to explain the cloud of illegitimacy and suspicion that quickly befalls any government that tries to deprive its citizens of the means of defending themselves.

There’s a storied history of the law’s treatment of self-defence from pre-history to modern Canadian law. There have always been limitations. A longstanding principle in both the English common law and continental European law has been that a person availing him or herself of self-defence use no more force than necessary to deal with the threat. As we’ll see, this remains at the core of self-defence law in Canada, as codified in the Criminal Code of Canada and as interpreted by our judges. Other rules of the old English common law of self-defence are not so clear cut in Canadian law, such as the “duty to retreat”, which mandated that a person being attacked had to attempt to retreat before being allowed to defend themselves. The exception to this duty to retreat arose from a 1604 case which spawned the Castle Doctrine – that a person didn’t have to retreat from attack in his home because “a man’s home is his castle”.

Legal limitations to self-defence have sometimes been discriminatory. Infamously, governments have sought to limit some citizens from having the means to defend themselves for nefarious purposes, such as the “black codes” that prohibited freed slaves from owning weapons for self-defence after the Civil War so that they could not resist further oppression, or the laws passed by Nazi Germany prohibiting Jewish citizens from owning guns – a precursor to genocide. Whenever certain groups in society have been specially limited in their right of self-defence or acquiring the means to exercise that right, whether by the passage of explicit laws or by the discriminatory application of existing laws, it has been a sign of continuing oppression, or that something worse is on the way. In other words, when governments take away self-defence, other important rights tend to be next.

The Criminal Code Definition

The law of self-defence in Canada is encapsulated in the Criminal Code provisions on defending against force or threats:

Defence — use or threat of force

34 (1) 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.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, 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.

No defence

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

While the above might seem fairly thorough, it’s important to remember that Canadian criminal law is not just what’s written in the Criminal Code. It includes the interpretation and application of the Criminal Code provisions by judges hearing cases. The explanations below incorporate the Criminal Code provisions and the relevant judicial interpretations of the law.

Reasonable Force

At the heart of the law of self-defence, or the defence of property, or the defence of others, is the concept of reasonableness. The act that constitutes self-defence must be done for the purpose of protection or defence, and it must be reasonable in all the circumstances. The factors set out above under s. 34(2) of the Criminal Code include many circumstances that the court must consider in determining reasonableness, but these are not the only circumstances that the court can consider. It can literally consider any relevant facts or circumstances.

Practically speaking, this means that an act that constitutes self-defence in one person’s circumstance will not necessarily qualify as self-defence in another. A person of slight build, being cornered and approached in a threatening manner by her much larger abusive partner who has previously vowed to kill her some day, may be legally acting in self-defence in swinging a bottle at his head. That bottle-to-the-head response might not be a reasonable act of self-defence between two strangers of equal size in a bar, where one approaches the other looking like he might want to fight. Similarly, it might constitute self-defence to shoot someone who is coming toward you with a knife, but it’s less likely to constitute self-defence in circumstances where it doesn’t look like that knife is going to actually be used against you – like the person being very far away from you, or there being a barrier between you and the person with the knife, or the person appearing so incapacitated by alcohol or other influences that they’d be unable attack you with the knife if they wanted to.

This test of reasonableness is used to determine whether a defensive act was necessary at all, and whether excessive force was used beyond what was necessary. The law is concerned with people going overkill in their defensive acts, or using self-defence as an excuse to simply unleash violence upon others.

Importantly though, the law doesn’t require you to exactly calculate the degree of force necessary in any given situation before defending yourself. Acting in self-defence is usually a decision that needs to be made in a split second, where hesitation can mean the difference between life and death. As the opening quote in this article indicates, the more urgent or sudden the threatening situation is, the more latitude the law will give you in assessing the reasonableness of whatever you decided to do to defend yourself. An oft-quoted statement of law is that “a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of defensive action”. Whatever you do in self-defence, rest assured that you’ll be judged as a human being facing all the stresses and constraints of the situation you found yourself in, not as someone who has the ability to pause time and draw out a flow chart of all your available options.

The law also doesn’t require you to see the future. The law assesses the reasonableness or your action, or of the amount of force that you decided to use, not the consequences.

Standing Your Ground

While there has been much reporting about the “Stand Your Ground” laws on self-defence in Florida, and similar laws in other American jursidictions, you should know that you are already allowed to “stand your ground” under Canadian law, and it’s been that way for a long time.

Under Canadian law, you are not explicitly required to attempt to retreat from the threat of force, deadly or otherwise, before responding with force to defend yourself. It would make little sense for a law that purportedly authorizes self-defence to first require you to turn tail and run at the first sign of attack, leaving you wide open to be punched, stabbed, or shot in the back. And furthermore, as anyone who has been in the midst of a violent confrontation knows, sometimes just showing that you are unwilling to retreat is enough to make an opportunistic attacker reconsider his actions, whereas immediate retreat might have the opposite effect.

However, remember again that the law of self-defence focuses on the reasonableness of your actions, taking into account all relevant circumstances. This means that while you are not specifically required to attempt to retreat in all circumstances, your options for retreat will be taken into account by the court in determining the reasonableness of your actions. This is especially true in circumstances when there is a claim of self-defence where deadly force is used. It is quite reasonable for the court to ask: what options were available other than killing the other person? If you stayed put and shot someone to death in a situation where you clearly had the option of avoiding any harm by driving away, there are going to be questions as to the reasonableness of your actions.

Thus, the best way to characterize the Canadian law of self-defence in the context of standing your ground is this: you are not required to attempt to retreat before acting in self-defence, but the court will almost always question why you didn’t. One major exception to this is that there is no question about retreat when using self-defence in your own home. Ceding your home to an attacker is not a realistic option. Your home is supposed to be a place of safety, so the law allows you to defend your personal safety within that place without consideration of retreat.

Using Force to Defend Others and to Defend Property

As the Criminal Code provisions indicate, the law of self-defence applies equally to the defence of other people. Your right to use force to defend yourself extends to the defence of any other person. You can defend a family member or a friend or a complete stranger. The same essential legal tests and limitations apply.

The defence of property is not as straight-forward, as it falls under another Criminal Code provision. The provision is as follows:

35 (1) A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances.

No defence

(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

No defence

(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

This article will not explore the intricacies of the law of defence of property. Note however that, in order to be justified, the use of force in defending property must be for the purpose of removing the trespasser, preventing entry of the trespasser, preventing damage to property, or to retake property. The reasonableness of your actions will be assessed in light of these lawful purposes. In many circumstances, your decision to use force in the defence of property will not be made under the same conditions of urgency as a threat to your person. If your life or safety is not at risk, the court will be less receptive to an argument that you used a little more force than was necessary because you didn’t have time to properly consider your options.

Also note the subsection removing the defence of property justification when force is used against a person authorized to enter the property for purposes of law enforcement. The law does not authorize the use of force against police officers who are authorized by law to enter your property, and who do so in the course of their lawful duties.

Finally, be aware that police officers and members of the public have implied licence to enter your property for the purpose of attending your front door to deliver something or to try to communicate with you. The default position is that people who approach your front door for these purposes are not trespassers. If you don’t want people to have this implied permission, you need to make it clear by fencing and gating the property, and putting up sufficient “No Trespassing” signs.

Some Other Limitations

You should be aware of a number of other limitations to self-defence – some obvious, some not so obvious. The first is that the law does not allow pre-emptive strikes or attacks in self-defence. It is one thing to use force when you reasonably believe you are about to be attacked (the guy is running at you, or has his fist raised). It’s quite another to use force because you think someone is going to try to attack you later in the evening. But for some very narrow  and complicate circumstances (involving battered spouses) you are not justified in “taking out” or incapacitating someone who you believe might try to beat you up later in the day, or who might try to shoot you tomorrow. In those situations, you’re expected to contact the police if you truly feel in danger.

Another important limitation relates to carrying weapons. Weapons can be used for self-defence, but the act of carrying around weapons for the purpose of self-defence can get you charged with various criminal offences. Carrying prohibited melee weapons (there is a long list, including brass knuckles, spike bracelets, and nunchuks), carrying or possessing firearms without proper authorization or in contravention of the Firearms Act, and carrying a concealed weapon will all lead to serious charges. Even if you end up in a fight where you lawfully use a weapon in self-defence, the incident may leave you with various charges relating to possessing that weapon. Even carrying around a legal weapon, non-concealed, for the purpose of self-defence can lead to you being charged with possessing a weapon for a purpose dangerous to the public peace. The bottom line is this: unless your taking them out for a predetermined lawful purpose, the law wants you to leave your weapons at home.

This is by no means an exhaustive list of the limitations on self-defence, but as a baseline you should understand that the law of self-defence is less likely to protect you from a finding of guilt if you are already engaged in some kind of criminal activity at the time of the incident giving rise to your claim of self-defence, and it is also unlikely to protect you in situations where obtaining assistance from the police was a reasonable alternative to your use of force.

Protecting the Right of Self-defence

Hopefully knowing a little more about your right to self-defence will give you greater comfort in being prepared to use it, if necessary. It may empower you to intervene and save a fellow citizen’s life if the occasion arises. It may spark forethought on your options for legitimately protecting yourself or your family in a given situation. Most importantly, knowing the parameters and limitations of self-defence might help to keep yourself and others around you from using force where it is not legally necessary. Remember that the social utility of a robust and fair self-defence law is greater safety, not greater violence. It is meant to excuse otherwise illegal conduct where they are undertaken out of genuine safety concerns and in reasonable proportionality to the perceived threat, not as justification for wanton violence. Using this right properly, and educating others about it, is the best way to legitimizing it and protecting it in the long term.