Self-defence is a defence that is both based on statute and common law. Self-defence is a complete defence as it serves as a justification for your conduct and if the defence is run successfully, it will provide you with an acquittal.
The Criminal Code indicates the following:
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.
To successfully argue self-defence the following elements must be satisfied by your lawyer, on a balance of probabilities. First, it must satisfy the “air of reality” test. This means that the Judge must be satisfied that a properly instructed jury acting reasonably could acquit you on the basis of the evidence.
Additionally, you must be able to successfully raise a reasonable doubt that you subjectively believed on reasonable grounds that force, or a force of threat, was being used against you. In determining this factor, the Court will subjectively look at whether you believed that it was necessary to use the level of force that you did use to defend yourself. Additionally, as discussed in the case of the R v Cinuous [2002] 2 S.C.R 3, the Court will also objectively determine whether or not your perception was based on reasonable grounds. This means that the Court needs to believe that a reasonable person in your circumstance would have responded to the situation with a similar force that was used by you.
The Court will take into account the factors that are listed in s.34(2) of the Criminal Code when determining if using self-defence was reasonable. These factors include:
- 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 any party to the incident used or threatened to use a weapon;
- the size, age, gender and physical capabilities of the parties to the incident;
- 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;
- any history of interaction or communication between the parties to the incident;
- the nature and proportionality of the person’s 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.
The Court also needs to be satisfied that you had a subjective purpose for defending yourself. As indicated in the case of R v Khill, 2021 SCC 37 the Court will take into account your “personal purpose in committing the act that constitutes the offence.”
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