Overview of the law
Self-defence has three requirements:
- An accused person must believe on reasonable grounds that force or the threat of force is being made against him/her or another person.
- The act that constitutes the offence was committed for the purpose of the accused defending or protecting himself or herself or other person from the force or threat of force, and
- The act was reasonable in the circumstances.
Provided that the defence of self-defence has an air of reality, the burden is on the Crown to prove beyond a reasonable doubt that the defence does not apply.
#1: Was there reasonable grounds that force or the threat of force is being made against the accused?
- Was the complainant to be aggressive?
- Did the complainant throw the first punch at the accused?
- Is there evidence that the complainant was a threat to the accused?
#2: Defending Others
The court may also assess if the actions were reasonable for the purpose of defending of another person.
- Is there evidence that the accused was trying to stop the complainant from attacking other person?
- Is there evidence that the complainant was relentless and posed a threat to the accused or other persons?
- The court will assess 1) if the force would be used against the accused and 2) whether the accused’s purpose in responding to this threat was protection.
- Was the complainant much larger than the accused? Was there a height and weight difference? Was the complainant armed?
- Is there video evidence that can corroborate the evidence of the accused? For example, was there evidence that the complainant used force against the accused during the incident, that he held him/her, that he wouldn’t let him/her go?
#3: Was the act was reasonable in the circumstances?
The more difficult issue is whether the accused’s response was objectively reasonable in the circumstances.
For example, the Court may assess whether it was necessary to hit the complainant in the head and to suggest he might have accomplished his purpose by striking a less sensitive area of the body.
The court may consider the reasonableness of the accused’s use of defensive force. It can be argued that the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.
The court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.
In other words, those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made.
Accused persons cannot be expected to have weighed the proportionality of his/her response with any precision in the heat of the moment when he/she is under ongoing attack.
- Was the accused was acting on adrenalin and, effectively, on auto-pilot, and had no time to contemplate the niceties of how he/she was conducting his/her self-defence?
- Did the accused react in a defensive purpose?
- Based on the evidence, is there a fair inference can be made that the accused hoped to defend himself/ herself by threatening harm.
Reasonable Mistake of Fact
Self Defence can also be invoked on the basis of reasonable mistake of fact.
The existence of an actual assault is not a prerequisite for self defence.
Reasonable believed in the circumstances
The question that must be asked is not whether the accused was unlawfully attacked, but whether he reasonably believed in the circumstances that he was being unlawfully attacked.
In other words, whether the accused reasonably believed she or another person was about to be attacked and that this belief was reasonable in the circumstances.
Air of Reality
If the accused can show that the defence of self-defence has an air of reality, the burden is on the Crown to prove beyond a reasonable doubt that the defence does not apply.