The definition of self-defence is when a person uses force or a weapon to protect one’s body and one’s property from harm. Contrary to popular belief, the Criminal Code of Canada approves of self-defence and the defence of one’s personal property (Sections 34 and 35) via the route of making a “citizen’s arrest”. Force must be reserved for specific situations. Although there are grey areas within the criminal code that can actually point to the victim as being guilty of acting out of bounds of the code. In the majority of cases, the charges are dismissed because the code is vague and subject to interpretation.
An example is if someone is in a position to defend themselves and it results in the offender’s death, they can expect to be arrested and charged. It is fairly automatic and that victim will wind up in court having to defend their actions. They would be expected to provide proof that their actions were made in self-defence.
As you can imagine, being charged with criminal actions after enduring a situation as a victim would be horrifying, beyond humiliating, and difficult from which to recover regardless of the outcome. On a positive note, the chances of being exonerated are better than average – that is if the actions were in self-defence and not viewed as retaliatory.
Understanding the Self-Defence Laws
It’s important to understand your rights and what is acceptable under Canadian law. Unfortunately, the grey areas that have never been clearly defined by Parliament, continue to be vague.
The example that made the news about a decade ago will help to understand this particular “grey area” regarding “Citizen’s Arrest”:
In 2009, Toronto’s Chinatown Lucky Moose store owner, David Chen, caught a man stealing a tray of flowers. Chen ran after him but the offender got away on his bicycle. The man returned an hour later and Chen and two of his employees tied him up and locked him in the back of the delivery van until the police arrived. In addition to capturing the offender, the police arrested Chen for kidnapping, forcible confinement, and carrying a dangerous weapon (a box-cutter). Additionally, since Chen did not make a citizen’s arrest at the time of the actual crime – it was considered out of the bounds of legal action. At the time, the criminal code stated that the citizen’s arrest must be made at the time the crime was committed.
Chen’s attorney, Peter Lindsay, stated the code was too inflexible:
“In this particular case, Mr. Chen had reasonable grounds to believe Mr. Bennett had stolen from him an hour earlier because he had video of Mr. Bennett stealing from him,” Lindsay said. “And the fact that he didn’t actually catch him in the act seems to me not to be important.”
Ultimately, Chen was found to be not guilty after receiving much local support for his actions. Local purveyors and residents found Chen to be a hero for standing up for his rights as a business owner and resident.
Years after this case was closed, in 2013, “The Lucky Moose Bill” was introduced and successfully added flexibility to the criminal code. It was amended to make people less fearful of making citizen’s arrests without being arrested themselves. The code now states that a citizen’s arrest can be made after the crime if it is accomplished within a reasonable period of time after witnessing the crime. Still vague, but at least it is an expanded version of the code.
What is “Reasonable Use of Force”?
Reasonable use of force is when someone is defending their life because of having a valid belief they are in immediate danger. The level of force must be considered commensurate with the circumstances. Plus, the courts are more understanding and lenient when defending one’s life more than when defending one’s property. When threatened in your home, a legally owned and loaded gun can be used but you must be able to prove you were acting in self-defence because it is against the law to point a loaded gun at anyone.
In a highly-publicized case in 2016, Peter Khill was tried for killing an unarmed indigenous man caught trying to steal his truck which was located on Khill’s property. The man, Jon Styres, was not armed; however Khill did not know that at the time. When he saw the truck’s bright headlights, he pulled out and loaded his 12-gauge shotgun. He then approached Styres from behind and ordered him to put his hands up. In his testimony Khill recalled that he thought Styres was holding a gun, but it was dark outside.
The Crown stated Khill should have called 911, however, the jury found Khill not guilty of second-degree murder. It is upon the Crown to prove the force was unreasonable while the defence needed only to prove that the self-defence was reasonable and necessary.
Legal Self-Defence is on Your Side
If you find yourself in a situation where your self-defence actions are being scrutinized, stay calm and remember that you have rights. The experienced lawyers at Jaswal & Krueger are experts in matters of self-defence and many other criminal matters.
If you are being charged with crimes associated with any self-defence situations, we can help. We will determine the most appropriate defence with the sole intent to resolve the unfortunate situation. If you or someone you know requires outstanding representation contact us as soon as possible.